Wednesday, July 29, 2009

Google Books Settlement Agreement Panel at New York Public Library

I've been following the Google Book Search Settlement Agreement very closely, because I think that whatever happens with it will have a large effect on the information industry. In particular, the Book Rights Registry that it would create could implement some extremely useful machinery, and whether we like it or we don't like it, anything we do that touches books would have make room for it.

Yesterday, I attended a panel discussion of the Google Book Search Settlement Agreement at the New York Public Library. It used to be that I never took notes on anything, but I've found that taking notes on Twitter can be a lot of fun. The panel was hosted by NYPL Director David Ferriero, who earlier in the day was announced as President Obama's choice to be "Archivist of the United States", whatever that means. For the most part, the panel represented the particpants in the Settlement agreement. David Drummond, Google's Senior VP for Corporate Development and Chief Legal Officer, represented google- he was the leader of the team that negotiated the agreement for Google. Representing the publishers was Richard Sarnoff, Co-Chairman, Bertelsmann Inc. and the President of the Association of American Publishers when they negotiated the deal with Google. There were two representatives of the authors- Jim Gleick, the well known science writer and author of Chaos: Making a New Science. Somehow the NYPL managed to also get the ghostwriter of The Age of Turbulence: Adventures in a New World on the same panel, Peter Petre. For its neutral voice, the panel had Jonathan Band, a lawyer and author of "A Guide for the Perplexed: Libraries & the Google Library Project Settlement" and "A Guide for the Perplexed Part II: The Amended Google-Michigan Agreement" explanations of the settlement agreement commissioned by a number of library organizations.

For most of the time, the panel answered questions from the audience, which I find to usually be the most useful part of a panel; there was no boring round-robin of opening statements. I should note first what I did NOT hear. If all you know about the settlement agreement is what you have read in the New York Times and the Wall Street Journal, or if you mostly pay attention to blog posts and Twitter feeds, you would get the distinct impression that the settlement agreement was in deep trouble. You would think that the Justice Department was about to throw the antitrust book at Google (the paper version, and it's a big book), that libraries were rushing to end their agreements and that Europe was threatening to speak only French. The panel, for the most part, seemed unconcerned with these scenarios, and the audience was polite, interested and in no way virulent.

The panel opened with a summary of the agreement by David Drummond. He thought it not surprising that, given the size and scope of the agreement, some people are wishing that parts of settlement had been written differently. He added that it was a lengthy effort to get to an agreement- three years. David Ferriero injected that "libraries wish they had been brought into the discussion earlier than 2 years into the lawsuit", but it seemed that no hard feelings remain there.

In response to a question about the adequacy of one free-access terminal per library building, Jim Gleick noted that every computer in the word would become effectively a terminal with increased access to books. In his own work, he has become a heavy user of Google Book Search, and 90% of what his usage would fall within the 20% of books that Google would be showing consumers for free.

Peter Petre then launched into an explanation of the Book Rights Registry, stating that it would have as its primary mission to increase access to Google Books through additional licensing agreements.

Jonathan Band mentioned the concerns from various library groups that the institutional subscription pricing of Google Book Search would be exorbitant. Determining what that price would be is "where the rubber meets the road". Richard Sarnoff's response to this was that the settlement agreement is "organic", i.e. many important aspects are not fixed in stone. For example, if the New York Public Library found that there were lines out the door to use the one free terminal in the building, that provision could be adjusted. "If one terminal is not enough, how many do you want?" While a report of this drew snickers on Twitter, the response from the real audience was quite positive. There seems to be a genuine willingness from the publishers to respond to community concerns, though there was a recurring theme that it was hard to predict the future of a product that does not exist yet.

In response to a question about how the concerns of libraries would be represented in the agreement, Petre said that the one of the first item on the agenda of the Book Rights Registry, once it is constituted, would be the creation of advisory committees for libraries and for the public. Band noted that the library associations want to see strong continuing jurisdiction over the settlement agreement by the court.

A lengthy, discursive question from Columbia University's Kenneth Crews about whether the settlement agreement would reshape the future of the digital information sparked an amusing set of responses. Petre said, very briefly "Yes", while Drummond emphatically said "No." Drummond thought it a great stretch to think the settlement agreement will set the terms for everything in the digital future, because its scope is quite narrow, and only applies to in-copyright, out-of-print books. Evidently Google has other things (video, to name one) to worry about. Gleick added that the settlement only affects books already published. The future is unaffected. Sarnoff characterized the agreement as being only about "horses out of the barn". From the point of view of the publishers, the settlement is a recognition by the publishers that access to copyrighted content will expand; it tries to do this without having all the value leak out of the book publishing industry.

In response to a question about orphan works, Band answered that the only alternative to the settlement agreement is legislation. There is no reason to assume that legislation would be any better for anyone except lobbyists. He says that from the perspective of being a lobbyist.

A discussion of who gets what money followed. Band pointed out, with more than a hint of irony, that lawyers get more money than anybody. "As it should be." My mind must have been wandering, because that comment woke me up! A quick look at section 5.5 of the settlement agreement puts the plaintiffs attorneys fees at $30 million out of a total settlement of about $120 million. Not a bad day's work, even if it took 3 years.

A question from a publisher concerned international rights. Sarnoff pointed out that there was no mechanism in the settlement to extend benefits outside US, nor was such a thing possible under the law. Google would have to make agreements country by country to be able to make available in other countries what the US will have.

What gives teeth to the public's interest in Google Books? Jim Gleick quipped "I'll bet David Drummond is glad he wasn't the one to have to explain Amazon's 1984 fiasco with the Kindle." He went on to say that the public was right to be concerned about issues like privacy, but that the settlement agreement was not the place to address those concerns. Band added that the consideration given the public interest under the settlement agreement is likely to be much better than what it would get in the absence of a settlement agreement. As for libraries, Drummond said that Google will set the price for institutional subscriptions according to settlement "principles", and that partners such as University of Michigan can use their agreements to "hold Google's feet to the fire".

Following in the discussion of the accountability of Google and of the Book Rights Registry, Petre wanted to highlight that for the first time there is a procedure set out to resolve disputes between authors and publishers. This is "truly historic."

Returning to the subject of orphan works, Drummond characterized the settlement as "family reunification for orphan works". Google thinks this will, in the end, be a very small percentage of the total. In response to a later question, he estimated that it would end up being 10% of all the works subject to the agreement. With roughly 20 Million total works, this leaves 2 million orphans. Sarnoff pointed out that unlike photographs, books have embedded metadata which makes them pretty easy to track down and take out of orphan status. Gleick suggested that money tends to make orphans disappear- there's no such problem as orphan works in music industry because of the rights registration organizations BMI and ASCAP.

James Grimmelman asked the best question of the night. "Suppose I started an organization with a purpose to digitize books and let you know about it. Would you settle a copyright lawsuit with me on the same terms as you've given Google?" "For you, sure", quipped Sarnoff. He then answered affirmatively with cautious qualifications. "We'd be inclined to negotiate something similar" with another capable party that was able to provide the sorts of assurances that Google has given. An agreement would certainly be easier the second time around. A subsequent discussion about "inserts" revealed that Google had initially been unaware of the complications of the book licensing environment and that the education process led to considerable delay in reaching an agreement.

With hardly a question about privacy or censorship from the audience, the panel addressed the issue directly. This gave David Drummond the chance to tout the fact that he was the subject of a criminal warrant in Italy and wave the flag for Google's brave stance to deliver YouTube in authoritarian countries. Jim Gleick pointed out that if Google removes something from Google Books, it would be required by the agreement to notify the Book Rights Registry and to provide it with the digital copy. This would act as a safeguard against censorship. Peter Murray asked me if the library would get a copy- the answer is that the fully participating library that provided the book would have the copy, and of course they also would still have the book.

All in all, there was no "news" from the panel, so I expect you'll not read much about it. But there's an editorial in the New York Times today that bravely comes out in favor of copyrights, against monopoly, and in favor of respecting privacy. I feel so much better.
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