A few thoughts on the Google Books Settlement

So much ink has already been spilled on the topic of the Google Books Settlement that I won’t dwell on it too much. I do, though, want to point out a few issues that haven’t been getting much play in the discussion:

  • The settlement only applies to books which are in copyright as of January 5, 2009. Specifically:
    • It doesn’t apply to periodicals (including scholarly journals, magazines, newspapers, etc.). For all the hype about Google Books as the “universal” or “last” library, that’s a gaping hole in coverage.
    • It doesn’t apply to books published after January 5, 2009. (Presumably this is due to the limitations of the instrument of class action lawsuits.) New books are not included in the settlement terms.
    • It doesn’t apply to public domain works, and so has no influence on how those works are treated in Google Books.
  • Opting out of the settlement doesn’t mean Google has to remove your books. From the FAQ:

    … [By opting out,] the author or publisher is retaining all rights to bring a legal action against Google … [T]he Settlement neither authorizes Google to make certain uses of these books and Inserts nor does it prohibit Google from doing so.

    By checking a box on the opt out page, however, the author or publisher can request that the Settlement Administrator ask Google not to digitize (or, if already digitized, not to display any contents from) the books or Inserts identified in the opt out form, Although Google has no obligation under the Settlement to comply with such request, Google has advised the Settlement Administrator that it is Google’s current policy to voluntarily honor such requests …

    So Google has not (legally, at least) abandoned its claim to fair use absent the settlement. The publishers and authors are willing to let that slide in exchange for the settlement. But that’s not the same thing as a precedent that mass digitization and providing access to snippets is fair use: if you want to do that (let alone providing open access to orphan works), and you’re not Google, you still run the risk of a lawsuit. Google didn’t want to fight the publishers; do you?

  • By default, in-print books will not be included in “Display Uses”, i.e. actually viewing the book. (I’m not sure how Google will make the determination of whether a book is currently in print, and whether it yanks the book if it’s reprinted.) The settlement doesn’t do much to increase access to in-print books: access is still solely at the election of the rightsholder. (Rightsholders of out-of-print books can opt-out, but the default will be in.)
  • The rightsholders’ percentage of revenues is strikingly similar to the percentage for iTunes (63% in Google Books vs. 65% in iTunes). But I don’t know how much of that share goes to the authors and how much to the publishers. My guess: authors won’t get a bigger share than they used to; publishers will still take the lion’s share.
  • This is probably the most important class action suit in copyright in about a decade (since Tasini at least). There probably hasn’t been as much interest in any copyright case since Grokster.
  • A lot of criticism from the openness side has been directed at Google. While there’s plenty to criticize here, including Google’s market position, remember (as I’ve dented) that Google is the defendant here. Presumably, Google planned for more liberal use terms prior to the settlement, which is why the Authors Guild and the AAP sued. (More cynically, the publishers and authors sued not because they thought Google’s plans were a threat to their revenue model, but just to get a payout from Google.)
  • That payout, by the way, is not an insignificant one. Google will pay at least $45 million to “compensate Rightsholders whose works Google has scanned without permission”, at $60 per book. Then there’s another $35 million to establish the Book Rights Registry. Then there’s 63% of all revenue from the project. Then there are the legal costs…

    If Google hadn’t settled, and if its fair use claim held up, what would it have cost to re-create the settlement? The transaction costs to allow uses beyond fair use (e.g. selling copies) would have been massive. Google still would have remained vulnerable to submarine authors of orphan works showing up later and winning a massive court award. The settlement effectively inoculates Google from this risk: if you don’t opt-out of the settlement class now, you’re in, forever. Given the insane amounts of damages under copyright (even for non-commercial purposes), this has to count as a huge benefit for Google.

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