Saturday, November 14, 2009

Revised Google Settlement Offers Minor Changes on Antitrust Issue, No Response on Library Pricing; Library Journal, 11/14/09

Norman Oder, Library Journal; Revised Google Settlement Offers Minor Changes on Antitrust Issue, No Response on Library Pricing:

Most foreign language books out; showdown coming with Department of Justice about orphan works?
  • More than one free terminal authorized at public libraries
  • No discussion of pricing of institutional database
  • Open Book Alliance: fundamental flaws not addressed

Shortly before midnight last night, Google, the Authors Guild, and the Association of American Publishers released a revised version (PDF) of the Google Book Search Settlement, with some clear concessions to foreign rightsholders (as noted by Publishers Weekly), a vague—and, to critics, fatally inadequate—concession on orphan works. There was also no response to library concerns about pricing of the potentially monopolistic institutional database—an issue that Google representatives say can't be addressed in the settlement.

The one notable response to criticisms from the library community was an agreement that, as Google representatives had already stated, more than one free public access terminal per library building may be authorized.

The revised settlement also incorporates some other concerns raised by the library community and similarly interested parties. The settlement will allow for Creative Commons licensing, which means that rightsholders—notably academics—can ensure their works are available for no cost. And Google won't "provide personally identifiable information about end users to the Registry other than as required by law or valid legal process...

Orphan works

New York Law School professor James Grimmelmann noted that, while foreign, non-Anglophone books had been taken out and the parties had made some tweaks here and there, the "heart of the settlement’s promise, peril, and problems has always been its treatment of unclaimed works—a category that contains the orphan works. Settlement 1.0 allowed Google to use and sell them on an opt-out basis, and Settlement 2.0 does the same. That gave Google exclusive access to a market segment that no one else can enter, and thus raised antitrust concerns."

University of Michigan Library dean Paul Courant, a settlement supporter, had recently expressed support for "a revised settlement (as suggested by the U.S. Department of Justice) that provided competitors with the ability to use the orphan works on the same terms as Google, or legislation with similar consequence.

"That didn't happen. "The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation," Grimmelmann commented. "They’re going to try to tough this one out; the DOJ will have to decide whether to back down or to fight, as this amended settlement doesn’t give it one of the central changes it asked for."

Grimmelmann noted that the agreement sets up a scenario in which Google competitors could scan orphan works should Congress change copyright law. Such a speculative possibility, he observed, "doesn’t create actual competition now." And, if Congress does create a statutory licensing system, "why do we need the class action [lawsuit]?"

His conclusion: despite "meaningful, if modest improvements," the central issue has not been addressed.

From Google

Google's point man Dan Clancy issued a statement: "The changes we've made in our amended agreement address many of the concerns we've heard (particularly in limiting its international scope), while at the same time preserving the core benefits of the original agreement: opening access to millions of books while providing rightsholders with ways to sell and control their work online.""

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