by Lauren Strandbergh, MTTLR Associate Editor
On October 28, 2008, Google reached a settlement with The Authors Guild and the Association of American Publishers (AAP) after two years of negotiations.1 The agreement would resolve the class-action lawsuit brought by the Authors Guild and book authors against Google, in addition to another lawsuit brought by five publishing companies as representatives of the AAP’s membership.2 Although Judge John Sprizzo has given preliminary approval, the settlement is still subject to final court approval following a June hearing, which “will determine whether the agreement is fair, reasonable, and adequate.” 3
According to Google, the agreement would provide increased access to out-of-print books, additional ways to purchase copyrighted books online, institutional subscriptions, free access from public and university libraries in the United States, and compensation and improved control to authors and publishers.4 This last would be made possible by the Book Rights Registry, a new development that is one of the more important aspects of the settlement.5
Under the settlement agreement, Google would pay $125 million to be used to create the Book Rights Registry, cover legal fees, and resolve existing claims.6 The independent, non-profit Book Rights Registry would distribute “payments earned from online access provided by Google and, prospectively, from similar programs that may be established by other providers” and “locate rightsholders, collect and maintain accurate rightsholder information, and provide a way for rightsholders to request inclusion in or exclusion from the project.”7
The new Registry would be similar to the American Society of Composers, Authors and Publishers (ASCAP), which monitors and compensates individuals in the music industry.8 As one blogger put it in a somewhat sarcastic post, Google and the Registry are bringing “the Dewey Decimal System into the digital age.”9 The Registry will keep track of books and inserts, as well as the respective authors, publishers, and other rightsholders.10
The Registry will do much more than serve as an information depository, though; it will also be responsible for contracts and payments. The settlement provides for a board of directors with equal representation of the author sub-class and publisher sub-class.11 A majority of the directors, including at least one from each sub-class, is required for the Board to act.12 This will presumably help to protect both the authors’ and publishers’ rights in their dealings with Google, and possibly other providers somewhere down the line.
Google and the Registry will determine the subscription prices.13 This basically amounts to Google proposing prices, and the Registry board approving or denying, thus acting as a check on Google.14 The settlement claims that Google and the Registry will attempt to base subscription prices on two factors: “the realization of revenue at market rates for each Book and license on behalf of Rightsholders” and “the realization of broad access to the Books by the public, including institutions of higher education.”15 These are worthy guidelines if followed. Ideally, the first goal (and the cost of corporate profit) will not make the second impossible. The legal databases provided by LexisNexis and Westlaw are examples of digital libraries that are unavailable to the masses due to high cost.
Rather than litigating the fair use question at issue in these lawsuits, Google settled for a large sum of money. This means that the legal standard is no better understood, and the price for using this material is high—$125 million in this case. Microsoft already bowed out of the competition for creating a searchable library database last spring.16 This could make it far more difficult for others interested in creating digital libraries or databases to acquire rights to the media, perhaps harming some of the smaller scale enterprises that have recently been appearing on library websites.17
What does all of this mean for the average Google user? Whether or not this settlement and the new Book Rights Registry will make a real positive difference for individuals and libraries across the country is somewhat uncertain. Search capabilities will definitely increase, which is Google’s main goal behind this expensive effort. But will people have access to content as they would at a library, or will the Google Books site simply become a mammoth bookstore, crowding out Amazon and other on-line retailers? The settlement only provides for public libraries to have one terminal where users may, one at a time, view out-of-print books and print them, for a per-page fee of course.18 This does not appear to be an exceptionally user friendly model.
Whether or not institutions will subscribe to this database and individuals purchase books will depend on multiple factors. Two of the most important may be price and ease of use. Even if an institution purchases a subscription or an individual buys a particular book, they are still restricted to printing or viewing the book on the website.19 This is rather limiting and may make sense only when discussing out-of-print materials. Hopefully Google will use some of the creativity they frequently display, and work with the Author’s Guild, and AAP to engineer a system that will be accessible to everyone.
1 Press Release, Google, Authors, Publishers, and Google Reach Landmark Settlement (Oct. 28, 2008).
3 Erica Sadun, Google copyright deal moves forward, Ars Technica, Nov. 19, 2008.
4 Press Release, supra note 1.
8 Reyhan Harmanci, Google, book trade groups settle lawsuits, S.F. Chron., Oct. 29, 2008.
9 Elie Mystal, Thank God For Good Lawyers: Google Destroys Libraries, Not The Law, Above The Law, Oct. 29, 2008.
10 Authors Guild, Inc. v. Google Inc, No. 05-CV-8136, at 65 (S.D.N.Y. Oct.28, 2008), (hereafter “Settlement Agreement”), available at http://books.google.com/booksrightsholders/.
13 Id. at 42.
14 Id. at 44. The registry is allowed to propose adjustments to Google. Id. at 45.
15 Id. at 42.
16 Miguel Helft, Microsoft Will Shut Down Book Search Program, N.Y. Times, May 24, 2008.
17 Many Michigan libraries are a part of the Michigan Library Consortium, provided through OverDrive digital media services, which allows card-holders to download eBooks and Audio books to personal computers for a limited amount of time. It is similar to a standard library in that there are limited “copies” of each book available at one time and a patron must wait on a list for the next available copy if all are “checked out.” Michigan Library Consortium Home Page.
18 Settlement Agreement, supra note 10, at 60.
19 Id. at 47-48.