GBS Amended Settlement: A status update

Peter Brantley Open Book Alliance January 2010 Google Book Settlement v2 : A status update

Digitization of books

Index 1. Starting with the basics 2. Essentials of AAP/AG v. Google 3. Relation to existing copyright (©) code 4. Legislative correspondence 5. Possible ramifications

“Scanning” basics Flickr, ioerr, “A reception for the Open Library project”

History of project  GBS began in 2004  Arrangements with R1 G5+1 and growing  UMich, Harvard, Stanford, NYPL, Oxford; UC  Google obtains unique, impossible to duplicate corpus of books  “Snippets” for possibly in-©  Full display for public domain (PD)

R1 books  Most books scanned from R1 universities  Sample of “G3” by OCLC:  83 percent are possibly in-© (post-1923)  93 percent are Non-Fiction (NF)  For NF books, 78 percent scholarly audience Beyond 1923, D-Lib Magazine, 11/2009 Brian Lavoie and Lorcan Dempsey, OCLC http://www.dlib.org/dlib/november09/lavoie/11lavoie.html

Books as data (“non display”)  Books utilized by Google many ways  Selling books directly not a primary gain  Fact mining benefits long tail search queries  Latent semantic analysis benefits general search  Real-time translation  Significant advertising income yield.

also Partners Program  Partners Program  In-© works per contract with publishers  Multiple business models supported  Google Editions for book vending in 2010  FN: Android presents vertical solution

AG v Google  9/2005 AG sues G for © infringement ● class action for all U Mich book authors ● class representativeness disputed  AG asserts analog > digital © violation  G asserts Fair Use defense  Precedents either way

Publishers  Song, dance with publishers over opt-in  (Some publishers submit opt-out lists)  5 of 6 largest NYC publishers file suit  Not a class action then (among publishers)  Settlement talks commence in great secrecy  Scanning continues for > 2 years meantime

Counting the books  At least 12M books in corpus (01/2010)  ~ 2-4M in public domain  ~ 8-10M are possibly in-©  ~ 2M are in-print, ? > to Partner Program

Settlement basics  45M to compensate © owners ($60/$15) ($45.5M to be paid out to the lawyers.)  G funds creation of Books Rights Registry (BRR) as collecting society (with split board).  Authors and Publishers (“rightsholders”) must claim books/inserts from Google-supplied DB of titles.  Google obtains license to scan all books in the settlement and make “non-display” uses.

Show me the money  G is able to make “display uses” of OOP books unless rightsholder (RH) objects.  In-print titles require explicit RH opt-in  Revenue (generally 37% G / 63% BRR):  consumer sales of books (not downloads)  institutional subscriptions (ISD)  print fees from public libraries  Ads from search queries

Settlement schedule  Initial announcement on 10/28/2009  First deadline for briefs: 09/04/2009  > 400 submissions, 95 % critical  DOJ issues sharp critique: “As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.”

Amended Settlement schedule Amended settlement filed: 11/13/2009 New deadline for briefs: 01/28/2010 Justice deadline: 02/04/2010 * 1-week later Fairness hearing: 02/18/2010

Hole-y corpus!  Publishers can claim OOP books but migrate future electronic business uses to private contract basis.  Trade publishers likely remove most of their attractive catalog to Partners / Editions.  DoJ : “It is noteworthy that the parties have indicated their belief that the largest publisher plaintiffs are likely to choose to negotiate their own separate agreements with Google ...”

Good4U, Better4Us  AG/AAP have negotiated a deal binding millions of other right holders, but not themselves.  If the settlement is a fair resolution and a fair allocation, why are not all bound to it? The corpus in the GBS ISD and for public access has already shrunk by about half because the amended GBS settlement excludes most non-English books.

Copyright past | future  Lengthening of copyright terms ● Else everything prior 1954 would be PD  Cultural organizations seek to digitize analog to preserve and provide maximal Fair Use access.  Congress failed to pass OW legislation. ● Understanding of issues for unclaimed creative works has matured.  Copyright Office renewal records not digitized fully. ● Need a public registry.

© Code dysfunctions  Statuary damage risks excessive for digital  (per work liability up to $150K even though no damages to ? RH from scanning and indexing)  Registration is jurisdictional requirement  Only registered works (books/inserts) eligible.  Reed v. Muchnick pending before SCT.  Settlement abuses U.S. class action  Creates private law through juridical action  G obtains release of liability past + future claims

Class Action acts like legislation  Class action binds all © owners in books.  G permitted to make non display uses of nearly all 20th Century books (including foreign titles).  G gets a solution to their orphan works problem with release of liability claims.  G obtains a compulsory license for in-©.  Electronic rights divided formulaically between authors and publishers.  New formalities regime is mandated.

Some dangers  Makes orphan legislation less compelling  Skews toward escrow and commercial uses.  Likely to induce further class actions for additional media (eg LPs) to circumvent legislative process.  Private corporations (like G) can use this precedent as a lever to force settlements.  Endangers tradition of Fair Use Doctrine.  Is this the way democracy should work?

Public purpose U.S. Dept of Justice: “... the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern.”

We can do better  A public utility supporting market competition and better open access –  international cooperative framework  digital deposit of new works with LoC  creation of public rights registry database  complementary legislation to support public access to unclaimed works

credits Some slides derived from: “GBS as Private @ Reform” Copyright Culture, Copyright History Tel Aviv, Israel, January 2010 Pamela Samuelson, UC Berkeley http://www.slideshare.net/naypinya/samuelson-gbs-as-copyright-reform

Thanks .... peter brantley co-founder, open books alliance - and - director, bookserver project internet archive, san francisco, ca @naypinya (twitter) peter (at) archive.org

GBS Amended Settlement: A status update

by Peter Brantley on Jan 19, 2010

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