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Google Books Settlement gets a makeover

It took until nearly midnight on what was itself a four-day extension on a court ordered deadline that had already been postponed from October 7th to November 9th, but at 11:54 p.m. Friday evening negotiators representing Google Books, the Association for American Publishers, and the Authors Guild submitted a revised version of the Google Book Search Settlement to Justice Denny Chin, U.S. District Court Judge for the Southern District of New York.

Based on a quick look at the 141 page document and its 15 attachments as well as statements by all the major stakeholders, it appears as if the scope of the controversial agreement will be restricted to English-speaking countries, but its basic structure remains largely intact with a limited number of key modifications to the Settlement addressed on a point by point basis to criticisms that have been leveled at it.  The revised settlement will now face a judicial review procedure in which the Court will set a timeline, including a notice period, an objection period, and a Final Fairness hearing in early 2010.

Individual authors and publishers will have until March 31, 2011, to file claims for $60 to $300 per book illegally digitized as part of the $120 million dollar class action settlement to the copyright infringement lawsuit originally brought by the Authors Guild against Google in 2005.  If they so chose, they will have until March 9, 2012, to have their works removed from Google's database.
 
As we have previously noted in this space, Google Books Search has met with much resistance in Europe, particularly among French and German language  publishers, writers, and scholars, as well as the threat of legal action for infringement of standing copyright agreements and trade law within the framework of the European Union.  The People's Republic of China--a market Google can ill afford to alienate--has also indicated that it will oppose the mass digitization of books published under its copyright laws.  How this agreement affects English language translations of works originally published under copyrights held in countries not bound by the agreement remains entirely unclear to this reader at the moment.
 
According to this Google-issued PDF file of the revisions, the "International Scope" of the agreement will be limited as follows:

As revised, the settlement will only include books that were either registered with the U.S. Copyright Office or published in the U.K., Australia, or Canada. After hearing feedback from foreign rights holders, the plaintiffs decided to narrow the class to include only these countries, which share a common legal heritage and similar book industry practices. British, Australian, and Canadian rights holders are joining the case as named plaintiffs and will also be represented on the Board of the Book Rights Registry... 
 
Another key criticism of the original settlement terms involved Google's unrestricted right to market and distribute so-called "orphan books," (i.e., books that are still under copyright protection but whose rights holders can not be located) and other unclaimed works and retain the revenue they produce.
 
Google's accommodations in this area involve an expanded role for the Book Rights Registry, an independent, not-for-profit organization initially funded by $34.5 million from Google to be created under the terms of the settlement.  The Registry will be the entity that collects and disburses revenue from third party users of on line content (e.g. Google Book Search) to authors, publishers and other rights holders. According to the Settlement Agreement, the Registry will own and maintain a rights information database for all books (and parts of books) covered by the Agreement and their authors and publishers:
 
The amended settlement agreement requires the Book Rights Registry to search for rights holders who have not yet come forward and to hold revenue on their behalf.  The settlement now also specifies that a portion of the revenue generated from unclaimed works may, after five years, be used to locate rights holders, but will no longer be used for the Registry's general operations or redistributed to other rights holders. The Registry may ask the court after 10 years to distribute these funds to non-profits benefiting rights holders and the reading public, and may provide abandoned funds to the appropriate government authority in compliance with state property laws. The Registry will now also include a Court-approved fiduciary who will represent rights holders of unclaimed books, act to protect their interests, and license their works to third parties, to the extent permitted by law...
 
Perhaps the most vocal and best-financed opposition to the Google Books Settlement has come from its competitors and potential competitors in the e-books market.  While the revisions do nothing to alter the de facto exclusivity Google will maintain in digitizing millions of books, it's competitors will get the opportunity to market out-of-print books on their platforms and to negotiate their own deals in the future with the Book Rights Registry: 
 
As Google first announced in September 2009, any book retailer -- Amazon, Barnes & Noble, local bookstores, or other retailers -- will be able to sell consumers online access to the out-of-print books covered by the settlement, including unclaimed books. Rights holders will still receive 63% of the revenue, while retailers will keep the majority of the remaining 37%. This provision has been explicitly written into the revised agreement as a Google obligation....
 
In addition, the amended settlement removes the non-discrimination clause (commonly called the "Most Favored Nation" clause) that pertained to the Registry licensing of unclaimed works. The Registry is free to license to other parties without ever extending the same terms to Google...
 
Critics who have argued that the settlement will place Google, a shareholder-held private corporation in the proprietary position of controlling access to a considerable portion of the English-speaking world's written knowledge and literature will not be consoled by this passage on "access models":

The amended settlement does not change the primary access models outlined in the original agreement, including enabling readers to preview and purchase books, selling institutional subscriptions to the whole database, and giving libraries free access at designated terminals. Under the revised agreement, possible additional access models to which Google and the Registry might agree in the future have been reduced and are now limited to: print-on-demand, file download, and consumer subscription.

The amended agreement also enables the Registry to increase the number of terminals at a public library building, and it clarifies that rights holders can choose to make their books available for free or allow re-use under Creative Commons or other licenses. Rights holders can also choose to modify or remove restrictions placed on Google's display of their books, such as limits on the number of pages that users can print...
 
Google's much criticized lack of transparency about their own privacy policy and business models is addressed by these two "bottom line" concessions extracted by the Author's Guild:
 
The amended settlement clarifies how Google's algorithm will work to price books competitively. The algorithm used to establish consumer purchase prices will simulate the prices in a competitive market, and prices for books will be established independently of each other. The agreement also stipulates that the Registry cannot share pricing information with anyone but the book’s rights holder...
 
Among the criticisms made of the original settlement, the one that appears not to have been addressed at all by the revised agreement concerns the privacy rights of readers and users of Google Book Search not to have their usage patterns and specific search parameters shared with third parties, especially the government.  Independent booksellers and professional librarians' groups have long been at the forefront of preserving the privacy rights of  their customers and patrons, but on line book retailers like Amazon and search engines like Google consider your reading habits their proprietary information and part of their business model.
 
"Article XV--Confidentiality" on page 124 of the agreement addresses these concerns with respect to liability issues facing copyright holders, the Book Rights Registry, and Google, as does Attachment D to the agreement which deals with Security issues, but there is nothing in the revised document that specifically addresses the interests of readers as a party to the agreement, much less constitutes a "Reader's Bill of Rights."
 
--R.D. Pohl
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