GBS Amended Settlement: A status update

Google Book Settlementv2 : A status update

Peter BrantleyOpen Book Alliance January 2010

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, 11/2009Brian Lavoie and Lorcan Dempsey, OCLChttp://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 projectinternet archive, san francisco, ca

@naypinya (twitter) peter (at) archive.org