2011: The Year the eBook Wars Broke Out

Open war is upon us, whether we would have it or not. These incidents in 2011  seemed like twitter-inflamed kerfuffles as we lived through them, but with the perspective of time, we can see they were preludes to a fight to the death.

1. Harper-Collins and Overdrive Stop Pretending

In a year or two, libraries may consider the Harper Collins limit of 26 circulations of a list price ebook through Overdrive to be a relative bargain, as all of the other large publishers will withdraw from "pretend-its-print" ebook licensing.

2. Amazon occupies Overdrive

Libraries mostly welcomed the possibility to lend their Overdrive ebooks to patrons with Kindles. Libraries are fundamentally service-oriented institutions and ebooks on Kindle is what the users wanted. But at what cost? Do the traditional library values of privacy go right out the door? Do libraries realize that patrons gone to Amazon might not come back?

3. The Penguin Strikes Back

The big publishers have watched Amazon's market power grow and see a future of slavery to an internet commerce master. Only Penguin allowed hostilities to break out, however, as the Amazon occupation of Overdrive broke the penguin's back. The target of opportunity was library lending. Evidently Penguin decided that a frontal assault on Amazon would be suicidal.

4. Prime Pretends to be a Library

Amazon added ebook borrowing features to their Amazon Prime service, revealing it as Amazon's answer to Netflix, and without even thinking about it, as a service that could eventually compete directly with public libraries. Now we see why Amazon wanted to get in on that library thing.

5. Publishers Decide Google is a Lesser Evil

Publishers looked back on the halcyon days when Google Books seemed poised to establish a new world order for ebooks with nostalgia. A separate, anticlimactic settlement between Google and the Association of American Publishers appears to be in the offing. It's Amazon that they're afraid of now.

6. Authors Lob Legal Grenades at Hathitrust

Spurned by the publishers in their joint crusade against the Google heathens, the Authors Guild decided that Hathitrust might be a less formidable opponent. And indeed it was, the lawsuit exposed a number of copyright blunders by the library cooperative. But the Guild's suit seemed hasty and ill-contrived. This sort of thing happens in wartime.

7. Amazon Obliterates Borders.

Although Borders was tactically weak in many ways, it was Amazon and the rise of ebooks that killed it strategically. Barnes and Noble, if it survives, won't look anything like the book marketing machine that it is today.

8. Libraries Muster the Resistance

The emergence of the Digital Public Library of America (DPLA) as a rallying point for libraries' continuing presence in the cultural life of America was a surprise, as it went against the prevailing tea-party currents for smaller government and increased reliance on the private sector. It's not clear how the symbolic presence of a library in Zuccotti Park could point the way to a digital future, but many things that have not yet come to pass are shrouded in darkness.

9. Anti-Piracy Hysteria Threatens Freedom Loving Citizens

The powerful publishing and media industries, in a paroxysm of inept do-something-ism, seem to have convinced Congress that it would be a good thing if the intenet could be censored for copyright infringement. Sadly, the solution they've fixed on, SOPA, will be ineffective against unlicensed content and will put the Justice Department smack in the middle of our nation's information infrastructure. Carpet bombing never ends well.

There's hope.

I have learned that whenever it seems that you're falling into the abyss, you must reach for a rope. There is always a rope.

Crowd-Finding the Orphan Books

A solution to the orphan books problem won't be delivered by a settlement of the Google Books lawsuit anytime soon, we learned on Thursday. "Orphan" works are ones subject to copyright restrictions, but for which rights holders can't be found or determined.  A proposal to open them up via settlement of a class action was rejected by Judge Denny Chin in March of this year. There was still hope, however, that a settlement between the parties would find a way to implement a "Book Rights Registry" that, while falling short of eliminating the orphan works problem, could go a long way towards making rights holders easier to find. I was present at last week's status conference where the parties met with Judge Chin to report their progress towards a new settlement addressing Judge Chins concerns, or failing that, a timetable for renewed prosecution of the lawsuit.  Although the lawyers for the publishers seemed to be optimistic about a settlement, Michael Boni, the lead attorney for the "authors" talked as though the their part of the lawsuit would go to trial.

No orphans here, just books being deeply
discounted at a Borders going-out-of-business sale.
Note the blurb on the book at the bottom.

While there are important copyright issues at stake in the lawsuit, I've been most interested in the proposed book rights registry. A book rights registry would compile and maintain a database of rights holders, making it easy (and cheap!) to contact, query and pay rights holders for uses that are would not be allowed without their permission or provided for by fair use. In the current environment, it can cost hundreds of dollars to clear the usage rights for an in-copyright book, even without paying anything to rights holders. With a publisher-only settlement and continued prosecution now likely, my guess is that the book rights registry is either dead or years from being a reality.

It's ironic that the past week demonstrated how badly a book rights registry is needed. HathiTrust, the research library consortium formed to manage the scans of library books generated by the Google Books program, announced plans to expand access to a small number of works that they deemed to be orphans. The Authors' Guild then sued HathiTrust to block the expanded access.

The legal experts thought the suit "borders on the frivolous", due to serious problems with the "standing to sue" issue. Only copyright owners have standing to sue to enforce copyrights in the US, and none of the rights holders were parties to the Authors' Guild suit.

A funny thing happened on the way to the courtroom, though. Under intense scrutiny, one of the purported orphans turned out to have easy-to-find parents. The Authors Guild gleefully reported that the day before filing the suit, they were able to locate a rights holder "with a few minutes of googling". This report seemed to indicate incompetence all around, HathiTrust for neglecting the few minutes of googling in their orphan-identification workflow, and the Authors' Guild legal team, for failing to address their "standing to sue" problem with "a few minutes of googling".

A subsequent blog post from the Authors Guild was a revelation. It turns out that the Authors' Guild didn't really need a registry to find rights holders. By asking for help from their large number of blog readers, they were able to identify rights holders for many more of the purported orphan works. It seems that when large numbers of people are interested to find a rights holder, it's not so much of a problem. Of course a rights registry would help, but even the best registry can't fix everything.

I started following the Google Books case over two years ago because I thought it was important to increase access to all sorts of in-copyright works. What I learned in the process made me realize that a cookie-cutter, one-size-fits-all solution would never work, let alone pass judicial scrutiny. An equitable arrangement for academic authors would treat authors who write for a living unfairly; and vice versa. Authors in other countries would be ill-served by a process devised with American authors in mind. I realized that access to the works most important to book lovers would only happen with lots of reader support. And that realization has led to the work at Gluejar on Unglue.it, currently in the implementation stage.

Unglue.it will address "orphan works" the same way that the Authors' Guild has done in its recent blog posts. In addition to working with rights holders that want to offer creative commons licensing of ebooks to the public (ungluing them, in our parlance), we'll give users the opportunity to "wish" for the ungluing of any book that's been published. If a lot of users wish for a book, we'll check into who owns the rights, and give them a chance to make an offering. If we can't find the rights holder, we'll ask the people doing the wishing for help. If 10,000 people ( or even a dozen, for that matter) care about J.R. Salamanca's The Lost Country, they'll do a lot more than a few minutes of googling. They'll be knocking on his door and sending him postcards from Fiji.

When a lot of people care about a book, they'll have the combined economic power to do a lot more than opening a book to snippeting and search. We'll ask the rights holders for their price to give their book as an ebook to the world under a non-commercial creative commons license (CC BY-NC-ND). That will make it possible for everyone, everywhere, now and long into the future, to use the book the way the creator always intended- to read, to learn and to enjoy.

Simon and Schuster is Looking at Limited Lending Library eBook Models

Michael Healy and Carolyn Reidy

Today's installment of the Publishing Point series of CEO interviews featured Simon and Schuster CEO Carolyn Reidy. Reidy was appointed to her current position at the very bottom of the economic cycle; she has had a lot on her plate to say the least. Although she knew when she took the job that she'd need to steer the company through a transition to a purely digital product, she had no idea it would happen as quickly as we're seeing.

Michael Healy, who didn't appear to be unemployed yet, again played the role of master interlocutor. He started out by asking the obligatory question about S&S's reaction to yesterday's decision on the Google Books Settlement.

We of course are disappointed that the judge didn't approve it, although I would also say that it wasn't so surprising that he didn't just approve it in total. Along with the other publishers who were party to the suit, we do hope that it's just another way-station on what will be a final settlement. I think he did give some indication in his ruling on ways that we can get to a final settlement and I think that all parties involved have a hope that we'll get there and there will be further conversations about it; it'll just take us longer to get there.

Healy, the Executive Director Designate of the Book Rights Registry that would be created by the settlement, joked that "this particular party certainly hopes that we get there!" Reidy continued:

I'm sure you do. And we all do, because there are real principles involved in the whole thing that we'd like to see preserved and definitely settled for the good of all of us.

Healy then asked if Reidy shared the optimism about growth in the book industry recently expressed by Len Riggio, Chairman of Barnes&Noble. Reidy does:

I share the optimism because I think that even though  there are negative fallouts occurring, as you see with bookstores closing and things like that, the ease by which consumers can acquire books, the ease by which people can publish books, also of selling and being able to put books in front of consumers the variety of ways you can market, all of these things are just exploding. and we don't yet have the same grasp of them that we did of the old system but there are so many opportunities facing us that I'm I definitely share the optimism about it, there's no doubt about it. The biggest question is whether or not you're going to take the old market and transform it into a new way of consuming or whether it'll get bigger; of course we all hope its going to get bigger. That's the biggest question in front of us: can we in fact enlarge the market for reading by using all the new tools and opportunities in front of us.

Reidy discussed at length the many challenges facing a publishing CEO in times of technological change. 20 years ago, even 10 years ago, a publishing CEO would be wrestling with questions of production systems and bandwidth pipes and why a best-selling crossword puzzle iPad App couldn't just be moved to the iBookstore. She believes that the biggest problem facing publishers is maintaining their ability to create value compared to the many entities ready and willing to disintermediate them.

Healy's last question concerned Harper-Collins and the "eye of the hurricane" that they've found themselves in regarding their change in ebook lending policies. Reidy's answer was succinct:

Simon and Schuster does not yet sell ebooks to libraries. We have not yet found a business model that makes us happy. That's why we're not in it

Later, in the Q&A period, I pressed Ready about finding a business model for providing ebooks to libraries: "libraries are worried about whether they'll survive the transition to digital books and funding difficulties at the same time. Are you at all worried about the survival of libraries across the transition to ebooks?" I asked.

There's a part of me that worries about it, but I'm first worried about my company... and my authors, and their survival. So we have met with several people who are trying to come up with a solution to sell into libraries and there are people who are working on various and sundry different models that are not just sell one ebook and let it be loaned forever, and in fact we met with one last week. So we've actually been meeting with people and think there will come a solution that we can live with. We just haven't seen one yet.

I hope that Reidy also finds a model that will allow libraries to thrive in time to help Simon and Schuster grow the market for reading.

Related articles

• Publishing Point interview with Carolyn Reidy, President and CEO, Simon & Schuster (teleread.com)

What's next for "Google's" Book Rights Registry?

Judge Denny Chin's order came down today; he decided NOT to approve the "Amended Settlement Agreement" (ASA) that would have ended the lawsuit between Google, the Authors Guild, and the AAP.  (The decision is only 48 pages, shorter than Chin's senior thesis.) What happens next?

There is speculation that the rejection will be appealed; apparently, Chin must give his permission for an appeal to proceed. (update: or maybe not). Another possibility is that the parties will go back and try to renegotiate a new settlement along the lines suggested by Judge Chin.

In the end, I conclude that the ASA is not adequate, fair, and reasonable. As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an "opt-out" settlement to an "opt-in" settlement. (See, e.q., DOJ SO1 23, ECF No. 922; Internet Archive Mem. 10, ECF No. 811). I urge the parties to consider revising the ASA accordingly.

I'm guessing, based on Judge Chin's fairly broad and terse rejection of the settlement's key terms, that a settlement will have to start at square one; even given the AAP statement:

While the March 22 decision of U.S. District Court Judge Denny Chin on the Google Book Settlement Agreement that was filed on November 13, 2009 is not the final approval we were hoping for, it provides clear guidance to all parties as to what modifications are necessary for its approval. The publisher plaintiffs are prepared to enter into a narrower Settlement along those lines to take advantage of its groundbreaking opportunities. We hope the other parties will do so as well.

One provision of the settlement that has had broad support, even from opponents of the agreement, is the Book Rights Registry. This is essentially a huge database of rights information that has been accumulated by the plaintiff's attorneys. While it's often referred to as "Google's Book Rights Registry", and it was set up with assistance from Google, it doesn't belong to Google at all.

Michael Healy, the "Executive Director Designate" of the Book Rights Registry, as been working on the registry for almost two years, writing specifications, answering inquiries from confused rights-holders, and waiting for a decision from the court before he can proceed to make it a functioning entity. What will become of this almost-there resource, now that the settlement has been rejected?

Here's one possibility: the plaintiffs could establish a book rights registry with or without Google.

Clearly, the plaintiffs and their attorneys have run up a huge legal bill for this lawsuit. They've been expecting an infusion of $34.5 million to set up the registry and another $30 million for attorney's fees. It's not clear how much has been spent on the registry so far, but it has registered claims for about 1.1 million books. This is potentially a very valuable resource, which, if put into play could greatly increase the possibilities for transactions of book rights.

One possibility is that as part of a side deal, the plaintiffs together with Google arrange to put the registry into operation, presumably with some cash from Google. I do not know if such an arrangement would be legal.  Another possibility is that the database is offered to investors who would set up a rights clearance business. The cash from the sale could help the plaintiffs continue the suit.

The opposite possibility is depressing, but not unlikely. The entanglement of the rights information with Google's proprietary information could be so deep that a functional Book Rights Registry would have to be started from scratch, and the ebook industry is locked into a continuing effort at cleaning up the rights mess.

Notes:

1. Follow all the Settlement news at The Public Index.
2. Although Gluejar's effort to unglue ebooks will be hampered by the absence of a Book Rights Registry, there will be an even greater need for efforts such as ours that offer a path to increased access to books.
3. James Grimmelmann's summary of the decision is required reading.

Judge Denny Chin Says He's Working On It

It's been just over a year since the Fairness Hearing on the Google Books Settlement Agreement. A lot has happened since then. Google's place in the pantheon of companies that will revolutionize and/or destroy publishing has been taken by Apple. The judge presiding over the trial, Denny Chin, was elevated to the Circuit Court of Appeals, but because of the shortage of judges on the district court (Judge Chin's District is down 9 judges) caused by the political stalemate in the US Senate, Judge Chin has been forced to keep most of his cases, including the Google case.

Yesterday, Judge Chin was honored by Princeton University, his alma mater, with the Woodrow Wilson Award. This award is given every year to the alumnus or alumna of the undergraduate college  who best exemplifies Wilson's memorable phrase "Princeton in the Nation's Service". In the morning, I went to hear him speak to his fellow alumni about his career as a judge.

He talked about the confirmation process, saying "it went on far too long, and frankly it's a process that needs to be fixed." He was nominated by President Obama on October 6th, 2009. Things initially moved rather quickly. His Judiciary Committee hearing was in November, and the Committee sent the nomination to the full Senate in December. But due to a Senator's anonymous "hold" his nomination didn't get a floor vote until April of 2010. After that six and a half month wait, the vote was 98-0. Of 875 federal judgeships, approximately 12% are vacant.

Chin's talk was entertaining and full of good humor. He concentrated on his "fun" cases, including cases involving New York's "Naked Cowboy" who sued Mars Candy for trademark dilution and invasion of privacy, a toy case pitting the makers of Commando-bot against the makers of Command-a-bot, and of course the Anna Kournikova versus Penthouse case, in which he was forced to spend hours upon hours studying relevant photos. The case in which he ruled that Listerine was not as effective against gingivitis as flossing made him a hero with his dentist, and earned him the tabloid nickname of the "Listerine Judge".  Chin didn't like this except it was better the "the Pervert's Pal" moniker he had earned by ruling Megan's Law unconstitutional in part. 

His most serious remarks came in reference to the Bernie Madoff case, in which the swindler was sentenced by Chin to 150 years of prison. Symbolism played a large role in Chin's thinking, which brought him back to his law school training about the role of sentencing. "Helping the victims heal" was an important consideration in his decision, one that he never encountered in law school. After the ruling, the same journalist who had labeled him the "Pervert's Pal" started calling him the "Rockstar in Robes".

The most moving part of Chin's talk came as he talked about his heritage. He did his Senior Thesis at Princeton on the "Old Ones" of Chinatown, the elderly Chinese. A photo of his grandfather was at the front of his thesis. His grandfather lived in a building of "railroad" apartments, each of which was occupied by an old man who had been separated from his family by the exclusion laws that had severely curtailed immigration from China to the United States. His grandfather had been able to go back to China only twice, once in the '20's when he got married, and then in the '30's, when Chin's father was born. Chin's Grandfather worked as a waiter in a Chinatown restaurant for many years, and like all the other men who lived in the railroad apartments, he would go to the post office every month and buy a money order to send home to his family in China. Chin's grandfather took the oath of citizenship in 1947, in the same court where his grandson would preside as a judge. Because his grandfather had become a citizen, and because immigration laws had been relaxed, Chin and his parents were allowed to come to the US in 1956 (Chin was only 2 years old).

Chin's appointment to the Court of Appeals was important to many people, because he became the only active Asian-American federal appellate judge in the entire country. His appointment was not only important to lawyers, judges, and politicians, but also to ordinary people like those living and working everyday in Chinatown. The Federal Court in New York is located adjacent to Chinatown so when Judge Chin goes out to lunch, random strangers will recognize him and tell him how proud they are of his achievement.

Chin took a number of questions after the talk. I asked him whether, given the year long wait in the Google case, his decision in the case was going to be longer than his Senior Thesis. As this was an active case he immediately said he wasn't going to comment, "but obviously I'm working on it".

How to Fund a Public eBook Library with Tax Deductions

In California, newly (re)elected governor Jerry Brown has proposed to zero out state funding for libraries. In Britain, government cuts could lead to as much as a quarter of librarians lose their jobs over the next year. In New York, the Queens library has responded to budget cuts by zeroing out its acquisition budget, instead of cutting opening hours. In my home town of Montclair, New Jersey, a historic branch building is being closed and the reference department is being eliminated.

Given the worldwide climate of cutting libraries, the recent proposal for the establishment of a "Digital Public Library of America" (DPLA) would seem to be either the product of a castles-in-the-sky delusions, or the result of watching too many Star Trek reruns. But it's worth thinking through the DPLA for a few moments before dismissing it as unrealistic.

Despite the complexities, the fundamental idea of a National Digital Library (or NDL) is, at its core, straightforward. The NDL would make the cultural patrimony of this country freely available to all of its citizens. It would be the digital equivalent of the Library of Congress, but instead of being confined to Capitol Hill, it would exist everywhere, bringing millions of books and other digitized material within clicking distance of public libraries, high schools, junior colleges, universities, retirement communities, and any person with access to the Internet.

I don't quite understand whether or how a National Digital Library could be restricted to its citizens; it would effectively be a world library, but that's a quibble, or perhaps a warning about territorially restricted rights, but there you get the idea. It should be an international effort. The Sloan funded planning initiative should go a long way towards fleshing out the idea.

The most difficult part of building such a library will be finding stuff to put on its virtual shelves. There's public-domain material to start. Cooperative scanning and digitization of such material would create an important resource for scholars, and much of this work has already been done. Almost two million volumes worth of digitized scans of public domain works  are already available (with varying availability) through the HathiTrust cooperative. Some of these scans were made as part of the Google Books project.

Another source of books for DPLA would be material that is out of print but not out of copyright. The Internet Archive suggests that many of these works can be made available to the public as if they were physical books, as long as a physical book is held as in reserve as the basis for doing so. It not clear whether doing so would be consistent with copyright law, except perhaps for books without economic value. Manyrightsholders might be willing to donate their rights to DPLA, just as many rightsholders appeared to be willing to allow use by Google for modest compensation.

Unfortunately, many rightsholders are absent and can't be found. Many rightsholders lack good documentation of rights or may be uncertain whether rights have been properly reverted. The Google Books Settlement Agreement attempted to settle or circumvent litigation surrounding these issues; the agreement has thus far not been acted on by the court. It's quite possible that legislative action would be required to allow a digital public library to freely provide this sort of content. Good luck with that.

What's missing from the proposed DPLA is any way to stock it with content that people actually want to read. Publishers that I've talked to are loathe to give up their backlists because they believe the backlists may become valuable through digitization and enhancement. Often the rights surrounding their backlists are so murky that it would be a significant expenditure just to clear rights. The only backlist acquisitions an NDLA would be likely to afford are those that are truly worthless.

There IS, however, a way, in the existing tax code, to direct tax money toward acquiring eBooks for a DPLA, or for any library, for that matter. It's called the deduction for charitable donations. As long as doing so is consistent with their charitable purpose, any recognized charity could collect donations toward the acquisition of rights to an ebook. If the ebook was then made available under a public license, such as one of the creative commons licenses, it would further that public charitable purpose.

For example, a charity focused on finding a cure for a disease (e.g. Huntington's) could ask supporters, acting together, to buy out the digital rights to books and journal articles relating to research, treatment and patient care for that disease. Similarly, a museum devoted to the history of New York City tenements could ask supporters to acquire works of fiction that bring to life the period and lifestyle of immigrant living in lower Manhattan in the early 20th century. Libraries could join together to support all sorts of books that promote their public purposes of promoting literacy, economic development, and cultural enrichment.

Donations made in this way would be fully tax deductible, at least in the US. I don't know the situation in other countries, but I note that many European countries have unfavorable treatment for eBooks under their value added tax (VAT) systems. I learned at Digital Book World that Italy has a 4% VAT for print books, but a 20% VAT for eBooks, which are considered to be a service. The VAT for charitable donations is, of course, 0%.

Readers of this blog will recognize that this is another way to present "ungluing ebooks". I've been working on ways for libraries and consumers to join together in a market to acquire the right to put ebooks into the public commons. This could happen through a collective of libraries or through a web site like Kickstarter, or both. Once acquired for the public commons, the ebooks could be made available through DPLA or any other library or ebook distribution service.

Apart from the tax advantages, the benefit of working with charitable institutions to crowd-fund the acquisition and liberation of ebooks is that early validation of the concept will be easier. No one really knows whether people will put real money towards the movement of ebooks into the public commons. Working on a project catalog much smaller than "all the world's books" with a target audience more focused than "people who love books" will allow us to more accurately gauge the willingness of the public to support public ebooks.

I've spent a lot of time this month explaining my ideas for ungluing ebooks. The questionthat keeps recurring is whether I plan to act on these ideas by forming a non-profit. The most persuasive argument for this is that the idea of acquiring the rights to an ebook for the public commons is much easier to understand when put in the context of a public charity, such as public television or public radio. The whole idea of free books is so foreign to people that people assume that free ebooks means pirated ebooks.

For now, though, I'll be pursuing this via my for-profit company, Gluejar, Inc. That's because I talked to my lawyer. He pointed out that it's much easier to deduct the costs of a speculative business venture from my taxes than it would be to convince the IRS that this weirdo crowd-funded public ebook idea is really a charitable endeavor.

I'd like to acknowledge Juliet Sutherland, Director of Distributed Proofreaders, and Richard Cave, I.T. Director of the Public Library of Science for very helpful contributions to the ideas in this post. I'm not an accountant or lawyer; this article is not any sort of tax advice.

Business Idea Number 3: Gluejar Book Search

A few years ago, I was invited to give a talk about the future of libraries at a library staff retreat. After the talk, the speakers were given a special tour of the library, which had recently undergone renovation. I was struck by the loneliness of the stacks. So many books, so much knowlege, so little usage.

As OCLC's Lorcan Dempsey has recently observed, the lawsuit over Google Book Search and its proposed settlement has highlighted the limitations on libraries' ownership of their book collections. There are many things that libraries would like to do with their books that they are prevented from doing by copyright law. The possibility that the Google Books service will enable libraries to reanimate their lonely book collections is the reason that libraries have, for the most part, been sympathetic to Google's digitization program.

One session at last week's Code4Lib conference sharpened my awareness of how libraries are struggling to acheive this reanimation on their own. There were 3 different presentations, from Stanford, NC State (3.65 MB ppt), and University of Wisconsin, Oshkosh, on "virtual bookshelves". The virtual bookshelf tries to enliven the presentation of an electronic library catalog by trying to reproduce part of the experience of browsing a physical library- sometimes the book you really need is sitting there next to the book you're looking for. It's an idea based on a sound user-interface design principle: try to present information in ways that that look familiar to the user.

The virtual bookshelf is not a new idea. Google has even been awarded a patent on virtual bookshelves- see the commentary here and here. Given that Naomi Dushay (who presented the Stanford work) wrote about Virtual Bookshelves in 2004, it appears to unlikely that the Google patent (filed in 2006) will apply broadly at all.

While the virtual bookshelf is a sensible and practical incremental improvement on the library catalog interface, it's also backward looking. People looking for information today want to search inside the books, not just "browse the stacks". But libraries don't have the ability (today) to search inside the books that they think they own.

Google Books could enable libraries to do just that. Google is spending huge sums of money to digitize books in libraries and make them searchable. When they got sued for doing this, the library community looked forward to having questions surrounding the fair use of digitized books settled in court. For example, while it's pretty clear that using digitization to create an full-text index of a book would be allowed as fair use, the display of "snippets" (as done by Google) may or may not be held to be a fair use of the page scans. When a settlement of the lawsuit was announced, much of the library community was disappointed that these fair-use questions would not be settled.

Google Books already allows users to set up book collections of their own and search them. The results come with snippets (see pictures), but if the settlement is approved, Google's ability to show snippets with vastly reduced infringement liability would leave it with a dominant position in libraries because of its ability to search inside huge numbers of books. If the settlement is not approved, Google's dominance would be similar, except that a copyright decision could shut down Google Books at some time in the distant and irrelevant future.

Some aspects of the settlement create holes in Google's index. As part of the settlement, rights holders can exclude their works from Google's index. Google's publisher partner program allows publishers to create these holes today. For example, even if you add Tolkein's "the Two Towers" in your Google library, Google won't let you search inside it. Only limited research uses can be made of the digitized works; as the Open Book Alliance's Peter Brantley has argued, it's very hard to tell what sort of innovations might arise from the availability of large numbers of digitized texts as data; the same goes for indices of these works.

Many other works have been excluded from the settlement. Works published only outside the US, Canada, UK and Australia, as well as works published in the US, but not registered with the copyright office, are not covered by the settlement. Works other than books, such as newspapers, magazines, and other periodicals are also excluded.

For these reasons and others, I've begun talking to people about "Gluejar Book Search". Gluejar Book Search would be a business focused on collecting, aggregating and redistributing full-text indices of copyrighted material. To comply with copyright law, it would focus on indices that can be distributed without infringinging copyright, and would help provide libraries and publishers with tools  to produce copyright-safe index documents.

I've frequently encountered the assertion that digitizing all the books in libraries is prohibitively expensive, and that only Google (or possibly the government) could possibly have the financial resources to do it. For example, Ivy Anderson reports an estimate by the California Digital Library that digitization of the 15 million books in the libraries University of California would take a half a billion dollars and one and a half centuries. There are two coutervailing arguments. First, the cost of book digitization software and equipment has rapidly fallen, and will continue to fall. Last year, I wrote about the Dan Reetz' DIY book scanner, but even commercial devices capable of both image aquisition and OCR are currently available for as little as $1,400. I described how it could cost as little as $10,000,000 to put scanners in 10,000 libraries to enable scanning of 5,000,000 books per year.

The other factor that could drastically lower the cost of producing digital full-text indices of all types of copyrighted materials is the drastically lower technical demands of an indexing system compared to that of an archival imager. Archival imagers produce huge scanned image files because of the need for high resolution in an archival image. The resulting demands on storage hardware are significant and expensive. In contrast, an index file can be quite small; the laptop I'm typing on could store indices for 3,000,000 books; I estimate that full-text indices of all the worlds books would today require at most ten commercially available hard drives.

Gluejar Book Search would be fueled by two main revenue streams. The first stream would come from customized search services to enable library patrons to search inside the library's books. The second stream would be to provide aggregated feeds of index files to mass-market and specialized search providers- Google's competitors, and book retailers such as Amazon and its competitors. Google may even want to acquire index files for works it has been asked to remove from its own index, such as the Tolkein book mentioned above.

A possible third revenue stream would come from partnerships with rightsholders willing to permit page or snippet display in exchange for link traffic. If a Book Rights Registry comes into existence, it's possible that many business models could be arranged without prohibitive transaction costs.

Part of the revenue from Gluejar Book Search could be returned to libraries, publishers and other institutions that have contributed index files to the aggregation. Libraries could choose to use these funds to fund further digitization; alternatively, they may prefer to contribute to an Open-Access index.

The success of Gluejar Book Search would depend to a significant extent on its ability to reach critical mass. If it could reach index 80% of a library's book collection, it would deliver significant value to the library. (That statement is based purely on conjecture- email me or leave a comment if you agree or disagree!) Critical mass might be rapidly attained by working closely with publishers and by partnering with low-cost digitization providers and existing content aggregators so obtain indices for the most widely held books. Once critical mass is obtained, the "long tail" could be addressed by encouraging the particpation of large numbers of libraries around the world.

A Gluejar Book Search business would require a significant but not huge raise of capital, if for no other reason than to address litigation risk. Although I believe the legal position of building copyright-safe book indices is secure, there are bound to be litigious rightsholders with a poor grasp of fair use under copyright. The other big risks involve Google. Google might well develop services that greatly undercut Gluejar Book Search's revenue streams. Finally, the "copyright-safe" approach might be completelyundermined if courts in many countries were to rule decisively for an expansive view of fair-use.

If you want to know more about Gluejar, read this post. I have been exploring many possibilities about "what to do next", and I've written about other ideas, as well. As always, I'm interested in feedback of all kinds. Over the next few months, I hope to develop this and other ideas in more depth, so stay tuned.

Notes from the Google Books Fairness Hearing

The Fairness Hearing was even more interesting than I expected; every time a speaker started droning on about something we'd all heard ten times before, Judge Chin would interrupt with a snippy or pointed comment. Judge Chin definitely runs a no-nonsense courtroom.

ResourceShelf has a nice round up of the news reporting from the fairness hearing; the best summaries are from Norman Oder at Library Journal: Part One and Part Two.

Here are some of my observations.

How Many Books?

In Dan Clancy's declaration (PDF, 149 KB) in support of the settlement, there are some interesting numbers (which actually come from Google's Jon Orwant).

• Google pays approximately $2.5 million per year to license metadata from 21 commercial databases of information about books.
• Google has gathered 3.27 billion records about Books, and analyzed them to identify more than 174 million unique works.

These numbers seemed to cause a great deal of confusion at the hearing. Several speakers opposed to the settlement combined this number with the information from the Declaration of Tiffaney Allen, Settlement Administrator for Rust Consulting, (PDF, 2.1 MB) that

As of February 8, 2010, Rust Consulting has received 1,846 completed hard copy claim froms, and 42,604 claim forms were completed using the settlement website. The total number of Books claimed by those 44,450 claimants is 1,125,339. [...]

Of the 1,107,620 Books claimed online, 619,531 are classified as out-of-print (not Commercially Available) and 488,089 are classified as in-print (Commercially Available).

Some objectors subtracted 1 million claimed books from 174 million unique works to get the eye-opening number of 173 million unclaimed works supposedly being exploited by Google. This is silly math, and the use of silly math is a good indicator of speakers not doing their homework.

It's known that one of the bibliographic databases licensed by Google is OCLC's Worldcat; it's probably not a coincidence that Worldcat currently contains 174,618,797 bibliographic records. There's a big difference between a bibliographic record and a book subject to the settlement. Later in the day, Daralyn Durie, an attorney representing Google, tried to clarify what the numbers meant. (updated February 22 with text from the transcript)

• 174 million is NOT the number of books in the settlement. 
• Google estimates that there are 42 million different books in US libraries. 
• 20% of these are in the public domain.
• About half of those left are written in foreign languages.
• Of the 42 million, less than 10 million of these works are affected by the settlement in any way. 
• Of these, about 5 million are out-of-print books implicated by the settlement. 

These numbers are in line with reality. Michael Cairns, a veteran of the book data supply chain business, has published his own estimates of the number of orphan works which more or less square with these numbers.

So what are the other 160 million works? They're duplicates (different editions of the same work), works that aren't books, and works published in countries excluded from the agreement and not registered with the US copyright office.

Update, February 20: Jon Orwant was kind enough to send me some clarifications.

The only correction I'd make is that it actually *is* a coincidence that OCLC cites 174M records and we cite 174M books. 

One thing to add to your "silly math" bit is that the 174M number also includes public domain books (hence not part of the settlement), and (this is the part that everyone messes up, and was ambiguous in Dan's declaration) 174M is a count of *manifestations*, not *works*.  Hamlet is one work but hundreds of manifestations.  The actual number of works is closer to 120M, but I haven't checked our most recent analysis.

Phrase of the Day: "Identical Factual Predicate"

It became clear at the hearing that Judge Chin's decision would turn on a determination of whether the settlement and the complaint it is meant to resolve have "identical factual predicates." I'll do my best to explain why.

A significant hurdle that the parties (i.e., Google, the Authors, and the Publishers) have to overcome is that the settlement is truly innovative and forward looking, and seeks to bind absent class members to business models that would not otherwise be allowed under copyright law. In their brief justifying the use of a class action, the parties cite a 1986 Supreme Court decision nicknamed "Firefighters", Local Number 93, Int’l Assoc. of Firefighters v. City of Cleveland. In this case, in which the petitioner tried to overturn a consent decree designed to redress past racial discrimination using ongoing obligations, the Court clarified that a judicial decree may go beyond the bounds of an original complaint.

In their filings, objectors countered with the “identical factual predicate” doctrine. This doctrine arises from a case known as "Super Spuds" in which it was held that a class action settlement could not go beyond the complaint of the original lawsuit. Judge Chin seemed interested in the apparent conflict and even asked Amazon's lawyer, famed copyright attorney David Nimmer, for his views on how to reconcile the precedents.

Nonetheless, attorneys from both sides wanted to argue whether the settlement satisfied the "identical factual predicate" test. Michael Boni, attorney for the Authors Guild, appear to be digging himself deep into a hole when Judge Chin asked him "Isn't it true that this case started out about snippets?" Boni argued that the case was really about the fears that publishers had about the scanning that Google was doing, and who knew what else? I thought to myself that publishers seem to fear much about the future of their industry, and following Boni's line of reasoning, the settlement could have included air rights because authors and publishers feared that the sky was falling.

Daralyn Durie's subsequent argument went a long way to recovering the ground lost by Boni. Of all the hot-shot lawyers making arguments at the hearing, Durie was by far the most impressive. She persuasively argued that since the original complaint included the Google's distribution of scan files to the libraries that contributed books for scanning, the settlement's provisions for selling access to scan files indeed constituted an identical factual predicate.

Judge Chin's eventual decision will turn on his evaluation of the "factual predicates".

What, Exactly, is Copyright's "Head"?

By the end of the hearing, I was sick and tired of hearing the phrase "turning copyright on its head". Even Bruce Keller, attorney for the Publishers' Association, was eager to use the phrase in its negative form. Have you ever tried repeating a word over and over again, so that its sound becomes grotesquely detached from its meaning? That's my feeling about the copyright-head phrase. It's meant to express that copyright usually means that copying requires the rightsholders permission, and the settlement would allow Google to make copies unless the rightsholder refuses permission.

On repetition, I began to ask myself: What part of copyright is the head? Are there brains in copyright? Is copyright blind? Does copyright have legs? Is there an invisible hand of copyright? When you eviscerate copyright, do copyright intestines spill out onto the floor?


Judge Chin Wants to Fix It

I got the impression that Judge Chin would like to approve a settlement. At least twice he asked objectors how they would "fix" the settlement to remove their objections. He asked EFF's Cindy Cohn how to fix the privacy problems she called attention to, and he sounded unhappy when EPIC's Marc Rotenberg told him that privacy problems with the settlement couldn't be cured. He asked Irene Pakuscher (representing the Federal Republic of Germany) if the settlement could be fixed to satisfy Germany's concerns about treaty compliance and effective representation. He also wanted to explore with more than one questioner Hadrian Katz' suggestion that all problems would go away if the settlement shifted from being opt-out to being opt-in.

State Laws Aren't Relevant

In an article last year, I suggested that Judge Chin might be tempted to used state unclaimed property laws as an alternate way to unravel the Orphan Works mess. Looks like I was wrong- he expressed open skepticism at the argument of Norman Marden, representing the Commonwealth of Pennsylvania, that the settlement should be rejected because of incompatibility with state laws.

Blind People had the Best View

The National Federation of the Blind made sure to have a very visible presence at the hearing to emphasize the benefits of the settlement for the reading disabled. It worked- photographs of blind people made the New York Times.

Spectators for the hearing filled two courtrooms. For the morning, I was in the overflow room, which featured a video screen small for the room and a distorted sound system. The view of the courtroom was fixed, and omitted any view of Judge Chin. Ironically, the seats closest to the video screen were filled with people who couldn't see it. Let's hope that's not emblematic of the case.

Settlement Lawyers Say Real Authors Don't Advocate Fair Use

Today, February 18, 2010, in the US District Court, Southern District of New York, Judge Denny Chin will hear arguments for and against approval of an agreement to settle the lawsuit against Google by a class of book rightsholders formed by the American Association of Publishers and the Author's Guild. The unlikely alliance of publishers, authors, and Google will try to push through a settlement that would provide increased access to millions of books that Google has scanned and digitized in cooperation with libraries.

You can read about the pros and cons, the benefits and controversy of the settlement on a variety of blogs, websites and news outlets, but if you want to read one paragraph (with footnote) from the thousands of pages filed with the court that embodies all the issues, contradictions and complexities of the Google Books Settlement, here it is:

Some object to the entire ASA because it does not ensure that scientific or academic works are freely accessible under “Open Access” principles.    They have claimed that if those works remain unclaimed, then they should be freely made available for use. These arguments run counter to the economic interests of members of the Class.¹⁴⁶ That the reading public may wish to have free access to scientific and other academic works covered by the ASA, or that some academic authors may not want to exploit their works through the Revenue Models, should not supersede the economic interests of members of the Class.

¹⁴⁶ That the interests motivating these objections runs contrary to the interests of the Class is best illustrated by their preference that Google should prevail on the merits of this litigation. See, e.g., D.I. 336 at 2-­3 (“we believe . . . that scanning books to index them and make snippets available is likely and should be considered fair use”).

This comes from the Supplemental Memorandum Responding to Specific Objections filed by lawyers for the plaintiffs in the case. This 187 page document, available from the Public Index (PDF 856 KB) presents legal arguments countering objections to the agreement filed with the court.  Just in case you've not had a chance to follow all the issues surrounding the case, I'll try to explain some of this crankiness.

In this excerpt, the "some" who object in "D.I. 336" (PDF, 287 KB) to the entire ASA (Amended Settlement Agreement) is Pamela Samuelson, Professor of Law at the University of California. Samuelson writes on behalf of a long list of academic authors, who believe that many absent rightsholders would want their books to be made as freely available as possible, and object to Google's exclusive monetization of those works.

I can speak to this belief from personal experience. My wife's father was a history professor, and wrote a small number of scholarly monographs published by university presses. These monographs, representing a significant part of his life's work, are unavailable to many scholars in his field. If he were still alive, we are sure that he would have wanted his books to be digitized and made freely available. I've advised the family that the Google settlement would allow these works to become much more available, something that would be difficult to acheive without the settlement because we have no documentation of the relevant publication contracts. Nonetheless, my father-in-law's interests would have closely aligned with those of the academics represented by Samuelson, in favor of free access, and siding with Google on the fair use arguments.

A large fraction of book authors write them for reasons other than to profit from book sales, and only a very small number of authors are able to make a living publishing books. In addition to academic authors, who publish to advance their careers, there are authors who publish to advance a political or social agenda, or as a means of personal expression. It seems bizarre to me that the legal representatives of the entire class of authors should just dismiss these motivations as running counter to the "economic interests of members of the Class".

Since the lawsuit is configured as a Class Action, the central issue that Judge Chin must consider is whether all authors and publishers are properly represented by attorneys for the class, and whether the settlement deals fairly with them. The provisions of the settlement are unusually broad, so Judge Chin will need to give detailed scrutiny to the provisions of the settlement which impact some class members differently from others.

It seems to me that footnote 146 argues too much. In attacking Samuelson and the academics she represents for siding with Google on the fair use issue, the footnote undermines the plaintiff's core argument that Boni & Zack LLC and Debevoise & Plimpton LLP, the authors of the Memorandum, are fairly representing their interests in the lawsuit.

At the fairness hearing, I won't expect to hear any new arguments or experience any legal drama (although I expect vitriolic verbal grenades from Lynne Chu). I'll mostly be looking for signs of interest, impatience, or annoyance from Judge Chin.

Related articles by Zemanta

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• Despite Changes, Many Still Oppose Google Books Deal (bits.blogs.nytimes.com)
• Last words? Google Books to get final hearing (news.cnet.com)

Copyright-Safe Full-Text Indexing of Books

As the February 18 hearing on the revised Google Books Settlement Agreement draws near, I think its timely to explore some issues surrounding full-text indexing of books. It's important to realize that when Google began its program of scanning books in libraries, it chose to do so in a way that entered the gray zone of fair use. Google continues to maintain that its scanning activities are perfectly legal, and fair use advocates welcomed the Publishers' and Authors' lawsuit because it had the potential to clarify ambiguities around fair use. No matter where the court decided to draw the line, the both fair use and rightsholder control would be able to extend into the zone of current uncertainty.

Overlooked in the controversy is the fact that Google could have chosen a safer course in its effort to make full-text indices of books. In this article, I'll argue that it's possible to make full-text indices of books in a way that steers well clear of copyright infringement. But first, I should note that playing it safe would not have been a good plan for Google. By pushing fair use to its limits, Google assured itself a favorable competitive position. In a lawsuit, Google could have lost on 90% of the fair use they were claiming and would still have ended up 10% ahead of where a safe course would have taken them. Google is large enough that even a 10% victory in court would have paid off in the long run. As it is, Google chose to settle the lawsuit under terms that put them in a better position than they would have occupied by playing it safe, and potential competitors don't gain the benefits of a fair-use precedent.

I make two assumptions about copyright in devising an copyright-safe indexing method:

1. You can't infringe the copyright to a work if you don't copy the work.
2. If you can't reconstruct a work from its index, then distributing copies of the index doesn't infringe on the work's copyright.

Just in case these assumptions are weak, my fall-back position is that indexing is clearly a fair use under US copyright law.

First, the fall-back assumption: full-text indexing is allowed as fair use under US copyright law. Indices are allowed as "transformative uses". Judge Robert Patterson's decision (pdf, 195K) in the "Harry Potter Lexicon" case gives an excellent background of this jurisprudence and concludes:

The purpose of the Lexicon’s use of the Harry Potter series is transformative. Presumably, Rowling created the Harry Potter series for the expressive purpose of telling an entertaining and thought provoking story centered on the character Harry Potter and set in a magical world. The Lexicon, on the other hand, uses material from the series for the practical purpose of making information about the intricate world of Harry Potter readily accessible to readers in a reference guide. To fulfill this function, the Lexicon identifies more than 2,400 elements from the Harry Potter world, extracts and synthesizes fictional facts related to each element from all seven novels, and presents that information in a format that allows readers to access it quickly as they make their way through the series. Because it serves these reference purposes, rather than the entertainment or aesthetic purposes of the original works, the Lexicon’s use is transformative and does not supplant the objects of the Harry Potter works.

The author of the Lexicon lost his case not because his indexing was not allowed, but rather because he copied too much of J. K. Rowling's creative expression in doing so.

Second, you have to copy to infringe copyright. A more accurate statement is this: You have to either make a copy or a derivative work to infringe copyright. The second piece of this can be a bit more confusing, because "derivative work" has a specific meaning in copyright law. A translation into another language is an example of a derivative work. Indices are not derivative works. The law considers indices to be more akin to metadata. I might need access to a book to count the number of figures it contains, but a report of the number of figures in a book and what page they're on is in no way a derivative work. The copyright act defines a derivative work as

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.

If you make copies by scanning, however, as Google is doing, you must also establish that your use is allowed as fair use. If you don't, then you don't even need to reach the fair use provision.

The last assumption gets more technical. The simplest form of a word index is a sorted list of words with pointers to the occurrence of the word within the text. So an index of that last sentence might look like this:

a    5,9
form    3
index    7
is    8
list    11
occurrence    18
of    4,12,19
pointers    15
simplest    2
sorted    10
text    24
the    1,17,20,23
to    16
with    14
within    22
word    6,21
words    13

It doesn't take a computer science degree to see that it's easy to reconstruct the sentence from this index. For that reason this form of index is equivalent to a copy. If you remove the position pointers, however, the index loses enough information that the sentence cannot be reconstructed. So if we take the words on a page of text and sort the words in each sentence, then sort the word-sorted sentences, we get an index of a page that can't be used to reconstruct text, but can be used to build a useful full-text index of a book.

The trickiest step of completely copyright-safe indexing is producing the page index from a book without producing intermediate copies of the pages. In a conventional scanning process, a digital image of a page is stored to disk and the copy is passed to OCR software. Indexing software then works on the OCR text. A scanning process that was fastidious about copyright, however, could scan lines of text word by word and never acquire an image large enough to be subject to copyright.

US courts have considered the loading of a copyrightable work into a computer's RAM storage to constitute copying, but scanning sufficient to produce an index can in principle be done without requiring that to occur. (For an excellent law review article on the RAM-copying situation, read Jonathan Band and Jeny Marcinko's article in Stanford Technology Law Review.) Also, even sentences of more than a few words can be considered copyrightable works, as I discussed in an article from November.

Another possible way to avoid copying is to build a black-box indexer. A closer look at the RAM-copying precedent, MAI SYSTEMS v. PEAK COMPUTER suggests that a non-copying scanning indexer can be built even if page images exist somewhere in RAM. In that case, the court reasoned that the software copy could be viewed via terminal readouts, system logs, and that sort of thing. If a closed-box indexing system were built so that page images resident in RAM could never be "perceived, reproduced, or otherwise communicated", then there is a fair chance that a court would find that copying was not occurring.

I'm a technologist, not a lawyer. I would welcome comment and criticism from experts of all stripes on this analysis. For example, I've not considered international aspects at all. There are many technical aspects of copyright-safe indexing that would need to be sorted out, but doing so could open the way to countless transformative uses of all the books in the world.

Ten Predictions for the Next Ten Years

I didn't do so well in 2000 when I made predictions for the coming year; a year later, I determined that only one of my seven predictions came true.

I'm ten years older and wiser, and I guarantee, triple your money back, that at least 3 of this years predictions will come true. In 2000 I didn't have Twitter to try my first draft on.

1. The number of public libraries in 2020 will be less than half today's number. Addendum: the number of public library locations will be 50% more in 2020 than today.
   
   I will write a full post about this, but I believe the driving force for this will be e-books and book digitization, and the result will be consolidation, outsourcing and shuttering of public libraries. Update: I've written a full post.
   


2. By the end of 2014, the world's largest aggregation of bibliographic metadata will not be WorldCat. By 2020, no one will care which aggregation is largest.
   
   Currently, the growth curve for LibraryThing makes it look like it will pass WorldCat in a few years. SerialsSolutions' Summon is definitely in the running. Google can't be discounted. But by the middle of the decade, the size question will seem silly, sort of like "What's the largest computer chip in the word?" or "Who has the most powerful nuclear bomb?" In 2010, we don't care about these questions. In 2020, data quality and currency will be much more important than data completeness. Also, see my article on "When are you collecting too much data?".
   
   Thanks, @DataG for the comments!
   
   
3. In 2020, general purpose quantum computers will not be useful for any purpose.
   
   If there's one thing I learned from doing physics, it's there ain't no such thing as a free lunch. If you spend a billion dollars on quantum computing, you might be able to factor an unfactorable integer or two by 2020.
   
   
4. Open Linked Data will hockey-stick in 2012 on standardization of of quad (named graphs?) transport.
   
   I've been meaning to write more about quad transport, but if you read my article on Pat Hayes' Surfaces, Leigh Dodds' article on Named Graphs, and the DERI proposal on N-quads, you'll know more than I do.
   
   
5. In 2020, the search engine era will be ending. Search engines will give way to less centralized "knowledge fabrics".
   
   Search engines have a specific topology: spiders pull in data from millions of distributed sites and add it to one big pile that can be searched on. This topology works great if what you want to do is search, but have you ever noticed that Google can't count? Understanding the connections in rapidly changing data will require new topologies and new business models. In 2020, we'll know what they are.
   
   
6. In 2020, China will be seen as having a more modern, sensible, and practical copyright regime than the US.
   
   In 2010, China has a poor reputation enforcement of Copyright. China will certainly mature in this respect, but to expect it to adopt the regime currently prevailing internationally is to ignore the best interests of China. I think that China will look to the original intent of the US Constitution and invent a copyright regime optimized "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
   
   
7. In 2020, more than half of the book industry's revenue will be facilitated by a Book Rights Registry.
   
   The Book Rights Registry that would be created by the Google Books Settlement Agreement is too good of an idea to be tied to the settlement agreement. It will happen whether the settlement is approved or not. People will complain about it... all the way to the bank. Note that my prediction uses the indefinite article. There may be more than one book rights registry!
   
   
8. In 2020, the New York Times will be profitable, and will not have gone bankrupt.
   
   It's easy to predict that the newspaper industry will contract- it's already happening! But the New York Times is uniquely positioned to take advantage of the market gaps that will open when local newspapers fail. Because they do expensive original reporting, they will have little competition. Because they're family-controlled, like Ford, they won't fall victim to the stupidities of the equity markets.
   
   
9. In 2020, Twitter will be a distant memory; Facebook will still be with us.
   
   Facebook has demonstrated ability to purposefully evolve and extend. Twitter seems not to understand itself. While my neighbor David Carr thinks that Twitter Will Endure, his argument applies to the idea, not the company. Twitter the company will be squeezed between multipurpose networks like Facebook on the high end and non-proprietary protocols on on the low end.
   
   Thanks, @CodyBrown for the comments!
   
   
10. On January 1, 2020, when I review this list of predictions, I will use a Mac to do it.
    
    It's been almost 25 years that I've been using a Mac. Do you really think that the mythical Apple tablet of 2020 will not be a Mac?