Andrew Albanese -- Library Journal, 10/30/2008
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* Increased access
* Did libraries sell out?
* End of copyright?
If a major theme has emerged among the reactions to Google’s sweeping $125 million settlement with publishers and authors over its library scan plan, it is cautious optimism, tempered by uncertainty. As LJ noted in its initial report, most observers say that the success of the deal will be in the details—and, as of now, this broad, complex business arrangement, still seeking court approval, simply leaves many questions open—especially for libraries. LJ has put together a quick roundup of thoughtful opinions now circulating about what the settlement means:
In today's big news, Harvard University Library (HUL) Director Robert Darnton said that questions about the proposed settlement would make it impossible for HUL to participate. “As we understand it, the settlement contains too many potential limitations on access to and use of the books by members of the higher education community and by patrons of public libraries,” Darnton wrote in a letter to library to staff.
“Specifically, [Google] positioned itself as being willing to fight certain lawsuits on principle in order to get precedent-setting rulings on the books in support of openness, fair use, safe harbors and many other important issues,” Masnick observed. “The company suggested that, rather than settle, it would fight these lawsuits knowing that it alone, with its big war chest of money, could fight some of these battles that tiny startups could never afford. It may not be surprising, but it’s safe to say those days are long gone.”
Ultimately, Masnick wondered if Google’s business deal-as-settlement may come back to haunt the company, perhaps locking it in to a model that may soon be outmoded, or encouraging a pay-me-off principle. “[The settlement] will only encourage more lawsuits against Google for trying to innovate, as more and more people hope that Google will settle and throw some cash their way,” he noted. “Furthermore, it greatly diminishes the incentives for making books more useful, and that’s damaging to our cultural heritage.”
Surprisingly, Lessig, who famously opposed a settlement in this case on very similar grounds, did not seem to agree with Masnick—nor his own initial views. “This is a good deal that could be the basis for something really fantastic,” Lessig wrote of the settlement. The terms, he added “will assure greater access to these materials than would have been the case had Google prevailed.”
For publishers and authors
Despite all the opinions, by and large, many are left questioning whether publishers have just acquired a huge rights headache—from trying to distribute the $45 million (in roughly $60 increments) to aggrieved writers to participating in yet another copyright registry, this one private. All that in addition to figuring out a way to whack up potential advertising revenue earned under the deal.
As you might guess, especially for the millions of books published pre-Internet, very few book contracts deal explicitly with allocating online advertising income—something that could lead to—you got it, even more lawsuits—from authors against their publishers. To quote one director of a large university press, speaking on background, “that’s one check I don’t want,” alluding to the potential rights problem.
In an eye-opening post, however, Mike Madison, one of LJAN’s favorite bloggers, very smartly looked beyond the niggling contract issues that are now sure to be raised, suggesting the settlement portends a broader shift for the future business of both writing and publishing.
“The proposal offers a new and larger set of questions, questions that have surrounded Google generally for some time but that the proposal puts into more concrete focus: are we seeing the early stages of the beginning of the end of copyright law as we know it?” Madison wondered. “The standard account of copyright, if such a thing still exists, posits a statutory allocation of interests between authors and readers, followed by institutional arrangements in specific contexts (fair use, voluntary licensing, collective rights management, compulsory licenses)… It has been my sense for some time that in many information policy debates, the default statutory arrangement no longer commands automatic attention as the presumptive center of the copyright universe.”