CULTech Blog

Education is right (Ben McLeod on Flickr - CC BY-NC-SA 2.0)

Discussion on the Google Books Settlement is getting very hot and heavy, with strong words from both supporters and opponents of the current settlement. As you may know, the Cornell University Library submitted a letter to the court in support of the settlement, although with a request for court oversight of some of the terms. If you are interested in the gory details of all the current arguments pro and con, and who is in which camp, then I will point you to The Public Index, which is doing a great job of accumulating information on the many aspects of the settlement.

In conjunction with the Cornell Library’s letter of support for the settlement, I have put together a set of questions and answers to address some of the issues that have been raised by the opponents of the settlement, and particularly some of the issues raised by the Open Book Alliance. I should make it very clear that I am not a lawyer, and I am certainly not an expert in the technical legal issues surrounding monopolies, so please keep that in mind as you read these points.

Q: Doesn’t the settlement give Google a monopoly over making orphan works available?

A: Due to copyright law, without the settlement or legislation, no one can make the orphan works available at all. By setting a floor for the terms under which orphan works will be available, the settlement may well make it easier to pass legislation that would allow anyone to scan and provide orphan works under the same (or better) terms as Google. In any case, the choice in the settlement is not between Google providing access or more general access to orphan works, it is between Google providing access or no access.

Q: Doesn’t the settlement give Google a monopoly on distributing digitized books?

A: For all but the orphan works, anyone else can negotiate with the copyright holders to get whatever terms to distribute digitized books they can arrange. They do have to be willing to invest, as Google was, in doing the digitization.

Q: Under the settlement, Google can sell institutional subscriptions to universities and others. What keeps Google from gouging universities with extraordinarily high prices for this essential subscription?

A: The subscription grants access to the full text of all the books in Google Book Search, but even without the subscription, users can freely search the entire full-text content of all the books and view amounts ranging up to 20% of the book. In particular, they can use the free services to identify the books and content they need. Instead of the institutional subscription, universities could then either deliver the physical book to the user (as they do now), or pay the one-off purchase price to give the user access to the book (an amount that is almost always lower than the current cost of delivering books to users through Inter-Library Loan). These alternatives put an effective cap on the amount Google can charge for the institutional subscription and still have anyone subscribe.

Q: Aren’t there serious privacy concerns with Google Books usage?

A: Cornell already licenses a large number of research databases for use by the Cornell community. The privacy issues with Google Books access are no different than the privacy issues that research libraries have addressed through agreements with database providers for many years.

Q: Aren’t there serious concerns with the quality of the books and the metadata in Google Books?

A: As with web search, Google is continuously working to improve the quality and accessibility of the books. Where scans are currently bad, they are working to identify and rescan as needed. Generally, Google metadata is as good as that provided by existing research libraries – because it is the metadata provided by the research libraries. In some cases, Google Book Search is making existing metadata problems visible, and providing an opportunity to correct this metadata.

Q: Doesn’t the settlement thwart competition in the emerging e-books market?

A: Google generally only gains any advantage in access to books that are currently out-of-print. In-print books are only available through Google if the author or publisher explicitly gives Google permission and optionally sets a direct price for the book. In the market for books that are actually selling (the ones currently in print), Google has no advantage over Amazon, Barnes & Noble, or many other e-book sellers.

Q: Doesn’t the settlement widen the digital divide by limiting access to digital books in financially hard-hit communities that have budget-constrained libraries?

A: Currently, these communities have no access to these in-copyright digital books. The settlement opens up the possibility for any institution, no matter how small, to have access to a digital library larger than Cornell’s current physical library of close to eight million volumes. This access can be either through a free public terminal available in any library, or through per-FTE licensing that Google is not going to be able to raise too high (or no one will subscribe).

In closing, I’d like provide to a personal perspective on the settlement. My grandparents wrote and held copyright on four different books originally published in 1929, 1931, 1965, and 1968, and all long out of print. I now hold the copyright myself, and I am very interested in making these works available to anyone who might want to read or make use of them. I actually have original publisher’s contracts for three of these books and, based on those, it is not clear to me who currently holds the publication rights on any of them. All had reversion clauses, where if the book goes out of print, the author can request that publication rights revert back from the publisher. All of them do require that the author explicitly request reversion. Moreover, reversion is only possible in cases where the sales of the books had already covered the original advance to the author. I strongly believe that my grandparents would have requested reversion, but I have no actual evidence to support that position. I also have no idea whether the publishers themselves still have any of the paperwork that would definitively settle the issue. The settlement would provide a straightforward procedure to sort out the reversion, control, and distribution issues, without anyone going to court. Moreover, for out-of-print books, the burden of proof is on the publisher to show that rights in the work have not reverted. I strongly suspect that there are many works that are not actually orphan works, but where there is significant uncertainty over the rights. Since these works typically have very low economic value, there is no incentive for people to spend the money to sort things out. The settlement will cut through the fog and answer the question of who’s right distributing these books really is.