Tuesday, March 22, 2011

Google Book Settlement, Losing the obvious dragon

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So, at long last, Judge Denny Chin has decided, in the form of a rejection, the proposed settlement between Google, the Authors Guild, and the AAP (aka the Google Book Settlement Amended Settlement Agreement, GBS/ASA).

Key points in the decision:
  • Chin feels a new agreement with an author/publisher "opt-in" model (as opposed to the current "opt-out" model) might work
  • the GBS/ASA would “grant Google significant rights to exploit entire books, without permission of the copyright owners”
  • the GBS/ASA would "Google a significant advantage over competitors,
  • rewarding it for engaging in wholesale copying of copyrighted
  • works without permission"
There's been some whooping and cheering from the library community with this slightly unexpected decision, so I feel compelled to offer some contrarian thoughts that popped into my head last night. Before I get to those, however, here's my first thought:

The open digitization movement for books, including public domain materials, has lost the big, easy, target. The strong negative reaction to the GBS/ASA energized a base of open access activists that, by using the Google Books demon, focused attention on key issues of access and digitization for a greater public good. I was at the Internet Archive on the day the settlement was first announced. Brewster Kahle was suddenly in demand for interviews with the press for opinions on the GBS/ASA and what it meant. Who or what will enable that kind of forum/soapbox now? Google and the GBS/ASA was a perfect point to rally a number of different communities. Now there's no obvious dragon to slay (or windmill to tilt at), just hundreds and thousands of individual authors and publishers that have to be negotiated with, slowly, one at a time. 

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My other thoughts:
  • The monetization genie is out of the bottle. Google and the Authors Guild have put a price on out of print books. Judge Chin has said this isn't the right way to set a price, but we all now know that somebody somewhere (in Mountain View) has put a hard dollar figure on out of print books. Next time you want to digitize an in copyright book and tell the author, they've made no money on royalties for n years, they know that Google says it's worth $. To be precise, the GBS/ASA says: "For Principal Works, Entire Inserts, and Partial Inserts that Google digitized on or before May 5, 2009, Google will pay at least US$60 per Principal Work, US$15 per Entire Insert, and US$5 per Partial Insert." (there's another whole section on how Google would revenue share on monies generated by Google on the content that gets arcane, but you can read it full GBS/ASA link above).
  • What's in it for Google now? Google is counter incentivized to keep the public domain books public, what are the options to keep this (even limited openness) open? What were the agreements between Google and the participating libraries that would let this happen under the umbrella of something like HathiTrust or more possibly, the Digital Public Library of America?
  • Google could buy off authors/publishers. Google was the deep pockets sugar daddy that could force publishers to see the future; without a GBS/ASA, the field is open for publishers to pick the carcass of the non-public domain out of print books. The recent HarperCollins ebook lending policy shows that "curious" new arrangements can be made (I hedge this phrasing here because I think that the library community has been a bit off-base with its reaction to the HarperCollins' policy since we don't live in quite the bitonal/2 bit world the argument's been painted as).
  • Future of Google Books? What happens to the books in Google books? (assuming the "opt-in option" gets no buy-in or is too cumbersome). Google keeps the status quo, if you find a book you like you can then buy it from? In what format? Do we get something like the current "agency" model that publishers imposed on Amazon ebooks?
And for those who find basketball more interesting, here's the Library Copyright Alliance diagram of "GBS Going Forward"

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