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Crawford at Large Cites & Insights Crawford at Large Libraries • Policy • Technology • Media Volume 12, Number 7: August 2012 ISSN 1534-0937 Walt Crawford Intersections It Was Never a Universal Library: Three Years of the Google Book Settlement Remember the Google Books settlement? It was go- ing my March 2009 overview and possibly a few of the ing to settle a four-year-old pair of lawsuits (four items it points to. I’m not going to rehash it—as it is, years old then, eight years old now) against Google this discussion is longer than the earlier one, even as (by the Association of American Publishers, AAP, it’s fundamentally a story of failure. and the Authors Guild, AG) asserting that Google Or is it? Maybe the failure of GBS is a success in was infringing on copyright through its two-line other areas—including (potentially) areas such as snippets from in-copyright books scanned in the fair use and sensible planning for library futures. Google Library Project—and by the scanning itself. This is a long set of notes and comments (cites Later, a third group representing media photogra- & insights). It strikes me that the topic and com- phers also sued Google for the same actions. plexity deserve that length—but note that I’m offer- A proposed settlement was announced in Octo- ing much briefer excerpts and comments on most ber 2008. Lots of people had lots of things to say items than I normally would in this sort of roundup. about it—-not unreasonably, since it had major im- After two sets of general notes and overviews plications. The March 2009 Cites & Insights is a 30- (one before the settlement was rejected, one after) page discussion of the settlement and what was be- I’m breaking the discussion down by topics rather ing said about it. An essay in the July 2009 issue than chronologically. addressed the misuse of the English language by some commentators. I assumed—as I believe most Sections other observers did—that the settlement might be General Notes: Before the Outcome ................................ 1 modified slightly but would probably be approved General Notes: After the Outcome ................................ 10 within a year or two, maybe even faster than that. Orphan Works .............................................................. 19 Now? The settlement (modified) is dead: The Monopoly and Antitrust ................................................ 23 judge struck it down as being unfair. Most of those Privacy and Confidentiality ........................................... 26 who were commenting on it (including me) really The Public Domain, Open Access, Copyright and Fair Use .............................................................. 29 didn’t deal with what turned out to be the core is- Libraries and Metadata .................................................. 32 sue: You can’t substantially transform copyright law Authors and Publishers ................................................. 48 by settling a class action lawsuit. Class and Standing ........................................................ 50 We are, in some ways, back to square one after The Future .................................................................... 54 the better part of a decade. There will assuredly be In Closing ..................................................................... 58 more developments over the next (year? five years? decade?), but given the clear death of the settlement General Notes: Before the Outcome itself, I thought this would be a good time to update It may be amusing to start with the single item I re- the situation. tagged “gbs-paranoia” when I was retagging nearly If you’ve managed to ignore the settlement (called 300 “gbs” items in Diigo. It’s by Steven Levy, posted GBS for convenience, as it is by at least one of the truly at wired.com on March 31, 2009 with the title knowledgeable commentators) so far, I’ll suggest read- Cites & Insights August 2012 1 “Who’s Messing With the Google Book Settlement? try development in the modern era. Exploiting an Hint: They’re in Redmond, Washington.” It’s as fair- opportunity made possible by lawsuits brought by a minded, balanced and objective as most of Steven small number of plaintiffs on one narrow issue, Levy’s writing, especially where certain computing Google has negotiated a settlement agreement de- companies are concerned. signed to give it a compulsory license to all books in copyright throughout the world forever. This settle- Here’s the nub of the “story”: New York Law ment will transform the future of the book industry School’s Institute for Information Law and Policy and of public access to the cultural heritage of man- filed an amicus curiæ brief (or, when Levy wrote this, kind embodied in books. How audacious is that? planned to file a brief) during the pre-hearing period She recounts the two lawsuits briefly and notes a set for such briefs—as did many other parties. couple of key points, after noting Google’s claim Explaining what the New York Law School brings that the snippets constituted fair use and that Au- to the party, [Daniel] Kornstein cited its mission “to thors Guild did not fairly represent the class of af- understand the interplay of law and technology and fected authors: influence their development to serve democratic values in the digital age … to extend human Many copyright professionals thought Google had knowledge and harness new informational tools to good defenses on both issues. Google’s attack on the goals of social justice.” The Institute, he writes, Mitgang and the Authors Guild as class representa- “is in a position to make a significant contribution tives would likely have succeeded because most au- to the resolution of the legal issues in dispute by thors of books in the Michigan library are academic virtue of its recognized scholarly expertise in intel- researchers likely to think, as I do, that scanning lectual property and Internet law.” books to make indexes and snippets is fair use. There are approximately 100 times more academic Which seems reasonable—but apparently it’s not OK researcher-authors than there are members of the (at least in Levy’s mind) for Microsoft to underwrite Authors Guild. that contribution. I like (and find hard to fault) Samuelson’s somewhat The chief investigator of the New York Law School cynical comments on why Google, the AAP and the project is James Grimmelmann. In an earlier career Authors Guild were all willing to settle: phase, associate law professor Grimmelmann So why did Google decide to settle instead of to worked as a programmer for Microsoft. At a confer- fight? Inspired perhaps by Rahm Emanuel, who has ence in February, Grimmelmann was discussing his observed “you never want a serious crisis go to views of the book settlement with a policy specialist waste,” Google recognized that AAP and the Guild of his former employer, and the Microsoft exec re- would be willing to settle their lawsuits by vastly minded Grimmelmann that the company has had a expanding the plaintiff class to all persons with a continuing interest in funding academic efforts. U.S. copyright interest in one or more books. The Microsoft provided $50,000. According to a Mi- settlement could then give Google a license to crosoft counsel, Microsoft funds “dozens of law pro- commercialize all books owned by the class. jects.” Microsoft had no say in the content of the Why would AAP and the Guild be willing to do brief. Frankly, I know of nobody other than Steven this? It is largely because the agreement designates Levy who regards Grimmelmann’s GBS work as be- the Authors Guild as the representative of the au- ing biased or less than first-rate: He’s generally thor subclass and the Association of American Pub- acknowledged as the go-to commentator. But here’s lishers (AAP) as the representative of the publisher Levy’s final paragraph in this nasty little hit piece: subclass. This designation ensures that they will have vastly expanded responsibilities and powers to Turns out that cleverest hacker here is Microsoft, control the market for digital books for which they making an academic grant that may help put some have been hankering for many years. judicial heat on its rival. After further discussion, Samuelson focuses on the Now, on to writers who are less into Heroes & Vil- non-representativeness of the Authors Guild as one lains as standard operating mode. reason to object to the proposed settlement—noting The Audacity of the Google Book Search Settlement that the terms serve the interests of AG and AAP A striking title for this August 10, 2009 piece by members much better than they do “the thousands Pamela Samuelson at Huffington Post. Samuelson is a of times larger and more diverse class of authors and law professor at UC Berkeley. Here’s the opener: publishers of books from all over the world.” Thou- Sorry, Kindle. The Google Book Search settlement sands of times larger? Yep: AG has about 8,000 will be, if approved, the most significant book indus- members; she cites OCLC estimating 22 million au- Cites & Insights August 2012 2 thors of U.S. books since 1923—and AAP is essen- expand Fair Use.” While I agree with the final tially the Big Six, while there are tens of thousands sentence, there was nothing in GBS that nar- of small publishers in the U.S. and abroad. It’s a rowed fair use. It simply didn’t address it; good brief comment on one good reason to question Google retreated. I can’t see raising fair use as the settlement from a respected source who’s on the an objection to GBS itself. skeptical side of the fence. Institutions will be charged for accessing the Pros and cons of the Google book deal digital library. I suspect this May 1, 2009 piece by David Weinberger He notes other issues briefly. What I find most inter- appearing in KMWorld offers a fairly typical attitude esting here is the assumption that the deal will go as to what was likely to happen—an attitude I shared forward and the (to me) odd set of objections raised.
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