December 10 – December 17, 2009 Edition Library Groups Point to Flaws in Revised Google Book Settlement

CHICAGO, IL/AUTHORLINK NEWS/December 9, 2009– The American Library Association, the Association of Research Libraries, and ALA’s Association of College and Research Libraries have challenged Google’s proposed settlement for its  Book Search project with a guide describing the major flaws and concerns, particularly those relevant to libraries.

A Guide for the Perplexed Part III: The Amended Settlement Agreement (PDF file), charges that Google’s proposed changes significantly reduce the scope of the settlement because it excludes most books published outside of the United States. Written by legal consultant Jonathan Band, the guide points out that Since “as much as 50% of the titles in the research libraries partnering with Google are not in English; and most of those foreign language titles probably were published outside the U.S. . . . The ASA, therefore, likely applies to half as many books as the original settlement.” The amended settlement agreement (ASA) (PDF file) significantly reduces the scope of the settlement because it excludes most books published outside of the United States.

The amended document removes time limits on Google’s right to discount the list price of books for consumer purchase; it permits only three additional revenue models to be developed in the future—print on demand, file download, and consumer subscription; and it specifies that the order does not provide antitrust immunity to the Google, the rightsholders, and the registry.  All of these points are seen as competitive issues.

Band points out that the ASA provides the Book Rights Registry the authority to increase the number of the number of terminals that can be used at public libraries to access the database of books; previously, only one terminal per library building was allowed. It also no longer excludes the Online Computer Library Center (OCLC) from the category of institutional consortia receiving benefits under the settlement; addresses privacy issues by clarifying that Google will not provide the registry with personally identifiable user information other than that required by law; and creates a new window for rightsholders to request removal of books from uses by Google.

Meanwhile, the revised agreement has drawn objections from various quarters. Among the most prominent dissenters is Amazon, who asked Judge Denny Chin November 20 to reverse his preliminary approval of the ASA, arguing that it released “Google, its library partners, and others from liability for future copyright infringement, including claims based on activities in which Google has not engaged, and would not engage, because doing so would have subjected it to criminal liability,” the Bookseller reported November 23.

The Bookseller  (via The American Library Association’s site) also reported that the Federation of European Publishers, which represents publishers from 26 countries, said that while the exclusion of most European works had “improved” the agreement, the group has “serious concerns,” warning there was a lack of information about the many European works still included because they had been registered with the U.S. Copyright Office. The FEP added that the situation deal could lead to “de facto monopoly . . . [which] is not desirable.” The French Publishers Association (SNE), France’s trade association of book publishers, released a statement (PDF file, in French) maintaining that the proposals “do not mark any progress on the essential question of non–English language works pirated by Google” and asks the search-engine firm “to respect the essential principle of prior consent by authors and publishers for use of their works.”

On the other hand, academic librarians saw the removal of the non-English works as detrimental to the project’s value. “It changes the value of it in a way,” observed Erika Linke, associate dean of libraries at Carnegie Mellon University. “It makes a big difference” for students researching non-English texts, she said in the November 24 eSchool News.

“It’ll be a pretty Anglo-centric system,” noted Brandon Butler, a law and policy fellow at the Association of Research Libraries. “What we thought we would have access to [on Google Book Search] was cut in half. It will make it significantly less attractive, because it’s much less comprehensive.”