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Books, Glorious Books

March 23, 2011

There has been an interesting development in Google’s master-plan towards (having the monopoly on) the digitization of the world’s books. The significance of Judge Chin’s March 22nd ruling is perhaps best understood in the general context of the company’s legal wranglings since its launch of Google Book Search initiative (now GoogleBooks):

2004 In 2004 Google launched a project of book digitization in collaboration with a number of research universities in the North America. According to the official history the font from which the project sprung was an intense admiration for the various digitization projects that were starting to pop up worldwide. Google’s argument on the level of copyright was initially that the scanning of books consisted in “fair use” (…Stand By Your Scan), maintaining that only books in the public domain would be digitized, or those for which the authors and publishers had given Google permission to scan.

2005 In 2005 the American Association of Publishers and the Authors’ Guild together filed legal proceedings against Google to stop the company from digitizing any more books.

2008 In this year a settlement entailing that Google would pay $125 million was reached in exchange for the company’s being permitted to continue on its mission. It was thus not established at this juncture if scanning could in fact be considered “fair use”. Any profits ensuant upon the digital availability of the text were to be divided between the copyright holder (+/-60%) and Google (+/-30%). As a consequence of the 2008 settlement with the AAP and the AG, it was now legal for Google to make full texts rather than just snippets of many texts available to users online.

Though seeming to benefit all parties, the new settlement bound all authors as a consequence of its Class Action status. Books were thus fair game for Google-digitization, even if the author was not contacted for permission first. The only option for authors was to avail of an ‘opt-out’ clause and in those cases where author/copyright-holder couldn’t be located, Google had the right to digitize their works. But a crucial new fly-in-the-ointment emerged for Google under the umbrella-term of ‘Orphan works‘.

2009.Orphan works (described in this video interview as ‘the crux’ of the 2008 settlement) are understood to be those texts that are out of print, but still within copyright. Under United States’ copyright law Google would only be able to show snippet-views of such texts, irrespective of any agreement they might have with the AAP and the Authors’ Guild. Even the stock image industry begins to concern itself with adapting to Orphan Works Legislation, see video from 2008 here.

2010 As the short video segment above shows, Google framed the motivation of their legal odyssey as being the interests of equal and free access for all of its users. Though opinions were nuanced and various, many in the academe argued that the digitisation of books, particularly more rare orphan works could only result in freer accessibility and educative gain. This kumbaya-vision was countered with a recognition of the effects of commercial impetus behind the proposed agreement amendment on academic researchers, and thus a discursive ‘Orphan Tug of War‘ was catalysed in the academe. The views of the more circumspect scholarly camp were epitomised in the contents of a publicly submitted second letter to Judge Chin which was signed by over 80 professors across the U.S and which objected to Google’s book-transmogrifying aims, especially as these pertained to the orphan work [letter downloadable in PDF here]. There were also concerns that Google would have exclusive rights to digitization that would not be afforded to other companies and that the pricing of books for digital access would become incrementally prohibitive.

For Joseph Esposito, advisor to scholarly publishers:

“The higher education community flatters itself to think that the Google mass digitization project and the proposed settlement was about them […] [T]he real object in this case from the beginning was the establishment of legal precedents for future disputes about copyright and the access to texts by machines, in part motivated by the prospect of the commercialization of data-mining techniques.”

The case has been keenly attended to by universities and libraries across the globe, exemplified in the Association of College and Research Libraries’ online posting of a complex flow chart of events in March of 2010 (most up-to-date online version here) in order to explain and track the permutations of the legal case. Because the case was Class Action and treated of American copyright law this decision is surely a landmark moment in the history of the digitisation of the book. In Manhattan yesterday, Judge Chin rejected the Amended Settlement Agreement. [Official court document here. Further information on legalities in USA regarding the digital book here and an interesting legal analysis here]. Chin maintained that:

“While the digitization of books and the creation of a universal digital library would benefit many, the ASA [Amended Settlement Agreement] would simply go too far. It would permit this class action–which was brought against defendant Google Inc. to challenge its scanning of books and display of “snippets” for on-line searching – – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.”

Google’s next course of action is described by a commentator as entailing one of the following three routes:

1. Either to continue litigating the original lawsuit, which is an unlikely scenario or
2. To amend the settlement to make it opt-in, meaning that authors would have to give permission before their books are scanned or
3. To appeal the judge’s decision to a higher court.

According to the same source ‘Judge Chin seemed to invite a new settlement, saying in his opinion that “Many of the concerns raised in the objections would be ameliorated if the [settlement] were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement.”’ Though most commentary comment on the AAP and the Authors’ Guild decision to try and amend the settlement rather than appealing the decision, Google has not announced any potential course of action as yet.

In terms of accessible and searchable online books is it Google or naught? The settlement had brokered a commercial solution (for copyright holders) to Google’s project and it was this aim toward commercialisation that put the ‘orphan works’ spoke-in-the-wheel of the Amended Settlement Agreement. The question now is whether it will be possible for a a non-commercial option to develop. In light of yesterday’s decision. Harvard University for its part is beginning to put in motion its plans to to instantiate a Digital Public Library of America in the coming years. Anglophone dominance of the digital book market and the position of Google both as a putatively American company and as the internet’s Wizard of Oz do seem to ensure that progressions in this case will determine the future for the digital book.

The discourse surrounding the settlement does offer a fascinating insight into contemporary debates around authorship in the United States and a codex-specific reflection of the inevitable (sisyphusian?) legal scramble to keep apace of that dissemination-reflex inherent to this-here digital age. And what of Google’s motto of ‘Don’t Be Evil’? Perhaps too weighty a theme to launch into at this juncture but you’ll find a relatively an interesting talk on the company here. Until the next permutations in the saga, various forms of virtual space-watching are the sole order of the day.



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