The Google Settlement: What's at Stake and Why It Is Important
The settlement, if approved, would allow Google to provide access to millions more books.
By Michael Stillman
Developments in the proposed settlement involving Google Books are on hold until the next court hearing scheduled in February. We will use this temporary halt to explain a few of the issues and why this case is of such groundbreaking importance to those interested in books.
Q. What is the cause of the controversy?
A. Google has been scanning millions of old books in various libraries, and making images of their text, or at least part of their text, available to the public. Some books are out of copyright, and these cause no problem. Google has arrangements with the copyright holders of others, and these, too, are not an issue. Where the issue arises in when Google makes copies of books still under copyright available to the public without the permission of the copyright holder.
Q. Why would Google do this, instead of first obtaining the copyright holder's permission?
A. Many of those who oppose the settlement, particularly the Open Book Alliance (a consortium of opponents), raise this very question. However, there are millions of books out there whose copyright holders are unknown or cannot be located. These are generally referred to as "orphan books." Every book published in the U.S. after 1923 could still be under copyright. So, let's say a book was published in 1925 and never reprinted, but is still under copyright. Perhaps the author died in 1930, and the publisher went out of business in 1940. How do you locate the copyright holder? How do you even know who the copyright holder is? Perhaps dozens of great-great-grandchildren of the author, or the heirs of publisher's bankruptcy creditors hold those rights, but who knows? Most likely whoever technically holds those rights doesn't even know it. Obtaining permission first essentially means these books cannot be made available to the public, by Google or anyone else. We are the losers, as access is lost.
Q. How does the proposed settlement resolve this issue?
A. When Google began making these "orphan" and other copyrighted books available to the public, groups representing authors and publishers sued them. Google and these groups then reached a settlement. It provides for an independent registry to manage copyrighted books. Google could sell access to these books, including "orphans," but 63% of the revenues they generate would go to the copyright holders (the remaining 37% to Google). Copyright holders who do not agree to this arrangement are free to opt out and then Google will not make their books available to the public.
Q. What happens to money earned by unknown copyright holders? Does Google get to keep it?
A. Royalties earned by sales of access to "orphan books" are subject to the same 63%-37% split. Google gets their standard 37% share, but no, they do not get the other 63% too if copyright holders cannot be located. That money goes into separate fund, up to 25% of which can be used to attempt to locate missing copyright holders, and if they are never found, may, after a minimum of 10 years, be given to charities which promote literacy.
Q. So why hasn't this resolved the problem?
A. Because however reasonable the arrangement may be, the copyright holders of "orphan books" have not agreed to the arrangement. Normally, you must obtain permission first to publish a copyrighted book. Instead, Google is publishing the book first and then waiting to see if the copyright holder objects. It's sort of putting the cart before the horse. But, as noted earlier, requiring permission for most "orphan" works first is virtually impossible as copyright holders are lost, meaning that sticking to normal form amounts to making millions of old books almost unobtainable. That would not be a good outcome from a public policy standpoint.
The Google Settlement: What's at Stake and Why It Is Important
Google seeks to offer access to "orphan books."
Q. Is what Google is doing legal?
A. It depends on who you ask. So far, Google is not making the full text of copyrighted books available. They only publish "snippets." If you search for terms in a copyrighted book, Google will only show you a line or two around those words, not the full book. Google contends this amounts to legal "fair use" of a copyrighted work. That, they believe, is similar to quoting a few lines in a book review, which book reviewers freely do, as compared to reprinting a book's entire text, which will get you into legal hot water. However, some opponents do not believe even "snippets" constitute fair use. Others object that while not revealing the full text, Google copies the full text from which to generate their "snippets," and they believe this is a copyright violation. Of course, if the court approves this settlement, Google will be able to provide access not to just "snippets," but entire texts of orphaned copyrighted books. This upsets some opponents even more.
Q. Why are some parties, including several Google competitors and the U.S. Department of Justice, concerned about monopoly issues?
A. They believe the settlement may provide Google with a monopoly over "orphan books." This is because the settlement does not guarantee access to these books to anyone other than Google. Another party would have to go through the same process, including possibly being sued for violating copyright laws, and with no guarantee that the independent registry would reach an agreement with them as they have with Google. They might only grant access to Google, giving that firm a monopoly. Google argues that there is nothing in the settlement that prevents others from reaching a similar arrangement with the registry, or for that matter, after certain revisions recently agreed to by Google, an even better one. Besides which, they point out, no one else has ever expressed any interest in making these works available to the public electronically until Google did.
Q. Why is what happens with this settlement important?
A. Libraries have done a wonderful job of making books available to us for almost two centuries, and will continue to play a vital role in making information available to the public in the future. However, their role is evolving, and that role, particularly with "orphan books," is no longer efficient. "Orphan books," by their nature, are more obscure, and consequently not held by many libraries. It can be very difficult for researchers to locate copies, or at least find copies within a reasonable distance of their homes. And, obscure, infrequently used older books are high on the list for de-accession, meaning they become harder to locate as each year passes by. But, there is still another issue that makes online access critical for efficient use. Digitization opens books to searches within their pages that was never possible with the printed word. An obscure old book may have a reference to a person, place or thing you are researching, but you would never know. That important information would be forever hidden from you. With digitized copies subject to a search engine, you can search millions of books at once in a fraction of a second to reveal hidden references within the pages. It's like a gigantic, combined index of millions of books that can be searched in a fraction of a second, and it indexes not just important terms, but every word in every book! What Google is doing is giving a life to these long dead books that is more vibrant than when they were new. We are all winners from this project. So, it is our belief that while more competition is good, and hope the government steps in to assure free competition to all, what Google has started is of enormous value to everyone who seeks knowledge, and therefore must go forward. Knowledge is more than power; it is our very lifeblood. It should not be inhibited.