Google Book Search Settlement Agreement - A Perspective from Stanford University Libraries

	Mimi Calter

Google Book Search Settlement Agreement - A Perspective from Stanford University Libraries by Mimi Calter [*]

February 2009

The recent announcement of a settlement in the Google Book Search class action lawsuit has generated significant discussion and comment. In this segment, Mimi Calter, Special Projects Librarian & Intellectual Property Manager at Stanford University Libraries, provides some background on Stanford's involvement with Google Book Search, and thoughts on the settlement.

Background

Google Book Search, one of Google's earliest efforts to move beyond the web in its effort to "organize the world's knowledge", was launched in late 2004 as "Google Print". From the beginning, there have been two halves to the effort: the Publisher Project focuses on new books, while the Library Project focuses on previously published works. It is the Library Program that is at issue in the lawsuit and the settlement.

Library partners allow works in their collections to be non-destructively scanned, and incorporated into Google's full-text index. In many cases, the libraries receive digital copies of their books in exchange. Stanford was one of five initiating partners in the Library Project, along with Harvard, the University of Michigan, and the University of Oxford and The New York Public Library. There are now more than 20 partners around the world.

Stanford's Involvement

The Stanford libraries have long seen the benefit of digital access to materials, and were thrilled to become a part of the project. Stanford University Libraries & Academic Information Resources (SULAIR) was already hoping to digitize its full holdings, and working with Google dramatically speeds the process and lowers cost of that effort. SULAIR's goals in the project are the development of digital preservation schemes, and, most importantly, the development of new and more accurate finding aids, such as associative search, citation linking, and recommendations.

The Suit

Less than a year after launching the library program, the Authors Guild, the Association of American Publishers and a handful of authors sued Google in a class action suit. The plaintiffs argued that Google's scanning of the works in order to create the full text index was a violation of their copyrights. Although Google Book Search displays only snippets of in-copyright works, the full works are scanned to create the index itself, and the Authors Guild and AAP claimed that exceeded what would be allowable under Fair Use. Google countered that its use was protected under Fair Use, and that creation of an index was transformative.

The Settlement

A proposed settlement was announced on October 28, 2008. The settlement is focused on in-copyright but out-of-print books, and provides significantly more access to these works than would have been possible under Fair Use. The settlement also provides authors and publishers with a mechanism to receive royalties. Note that public domain materials are not covered under the settlement, and remain free for all to use. In-print materials are also excluded, though they continue to be posted to Google Book Search through the Publisher Program.

Under the settlement, Google will be permitted not just to index but to also provide access to in-copyright, out-of-print works. Some of that access will be free, including free terminals that Google will provide to public and academic libraries. However, full access, including printing and downloading, will require subscription access or an individual purchase.

To make this possible, Google will fund the establishment of a Book Rights Registry to be run by the authors and the publishers. Libraries that provided materials to Google will continue to receive scans of the materials, which they can use for preservation, local indexing and searching, disability access services, and analytical research. Participating libraries will provide reading access to the out-of-print books through Google, not through the locally held digital copies. This enables the accurate distribution of royalties.

Note that the settlement is between Google and parties that sued. Participating libraries were not sued, and therefore are not party to the settlement. The settlement includes a structure under which libraries participate, and Stanford is currently in negotiations to become a Fully Participating Library under the terms of the settlement. Four of the five initial participating libraries have endorsed the settlement, and are expected to participate.

Also note that court approval is required before the settlement is final. Approval not expected before the summer of 2009.

Key Points for Libraries

• In-copyright but out-of-print materials in the Google library become accessible
• Free full text access at public libraries and higher-education institutions
• Accommodated services for the print disabled
• Free preview and "Find in a library" continue
• Institutional subscriptions and individual purchase available
• Partner libraries receive working copies of contributed works for searching and web services complementary to Google's;
• Digital copies of works digitized by Google provided to the partner libraries for long term preservation
• Research corpus of the full database will be made available for advanced analytical research

Fair Use

The settlement leaves the Fair Use question unresolved; essentially, the sides have agreed to disagree. The settlement has specific language excluding Fair Use. Lack of resolution on this issue has been a major concern for commentators, and Stanford is among those disappointed that this case will not provide clarification of this important issue. However, a ruling on the Fair Use question would not have allowed the broad spectrum of services that the settlement does, and would have taken years. Stanford believes that while the agreement isn't everything we wanted, it is a reasonable solution and results in markedly better access than a Fair Use win would have.

Learn More

Useful list of links:

pureinformation.org - Google Book Settlement Links

Blog Posting from Paul Courant (U. Michigan)

Joint Press Release in Support

ALA Roundtable Discussion

Criticism from Bob Darton in NY Review of Books

See thoughtful responses:

Robert C. Richards, Jr

Paul Courant

Grimmelman's advice on improvement

*Mimi Calter is the Special Projects Librarian and Intellectual Property Manager for Stanford University Libraries at Stanford University.