Google book settlement and the future of books

Professor Pamela Samuelson's forthcoming Minnesota Law Review article on the Google books settlement is now available via SSRN. Abstract:

"The Google Book Search (GBS) initiative once promised to test the bounds of fair use, as the company started scanning millions of in-copyright books from the collections of major research libraries. The initial goal of this scanning was to make indexes of the books’ contents and to provide short snippets of book contents in response to pertinent search queries. The Authors Guild and five trade publishers sued Google in the fall of 2005 charging that this scanning activity was copyright infringement. Google defended by claiming fair use. Rather than litigating this important issue, however, the parties devised a radical plan to restructure the market for digital books, which was announced on October 28, 2008, by means of a class action settlement of the lawsuits. Approval of this settlement would give Google—and Google alone—a license to commercialize all out-of-print books and to make up to 20 per cent of their contents available in response to search queries (unless rights holders expressly forbade this)."

This article discusses the glowingly optimistic predictions about the future of books in cyberspace promulgated by proponents of the GBS settlement and contrasts them with six categories of serious reservations that have emerged about the settlement. These more pessimistic views of GBS are reflected in the hundreds objections and numerous amicus curiae briefs filed with the court responsible for determining whether to approve the settlement. GBS poses risks for publishers, academic authors and libraries, professional writers, and readers as well as for competition and innovation in several markets and for the cultural ecology of knowledge. Serious concerns have also been expressed about the GBS settlement as an abuse of the class action process because it usurps legislative prerogatives. The article considers what might happen to the future of books in cyberspace if the GBS deal is not approved and recommends that regardless of whether the GBS settlement is approved, a consortium of research libraries ought to develop a digital database of books from their collections that would enhance access to books without posing the many risks to the public interest that the GBS deal has created"

Conclusion:

"Google has made two bold moves with GBS. The first was to undertake the scanning of millions of books in order to index their contents, make snippets available to potential readers, and make nondisplay uses to refine its search technologies. The second was to settle the lawsuit brought against it charging the firm with copyright infringement so that Google could commercialize most of the books it had scanned. At first blush, this seems like a win-win-win, that is, a win for Google which would now be able to develop revenue models from which to recoup its investment in GBS, a win for authors and publishers who would enjoy a substantial share of the revenue stream generated from GBS books, and a win for the public which would have increased free access to books, as well as opportunities to have even greater access through subscriptions and purchases.
The second bold move has, however, proven to be far more controversial than the first. Even those who follow developments in the publishing industry closely have expressed reservations about it:

[W]as it ever reasonable to think that such a revolutionary, unprecedented pact, negotiated in secret over three years by people with loose claims of representation, concerning a wide range of stakeholders, both foreign and domestic, involving murky issues of copyright and the rapidly unfolding digital future, could be pushed through as a class action settlement within a period of months, in the teeth of a historic media industry transition?291

This Article has shown that although there are some reasons to be optimistic about the future of books in cyberspace if the GBS settlement is approved, there are even more reasons to be worried about the settlement and its consequences for competition and innovation down the line, as well as for sustained public access to knowledge, and to doubt that the bright promise proclaimed by GBS proponents is likely to be achieved.
The future of public access to the cultural heritage of humankind embodied in books is too important to leave in the hands of one company and one registry that will have a de facto monopoly over a huge corpus of digital books and rights in them.
Google has yet to accept that its creation of this substantial public good brings with it public trust responsibilities that go well beyond its corporate slogan about not being evil."

 Highly recommended. In fact if you want to get a comprehensive handle on the Google Book settlement, everything written by Prof. Samuelson on the subject is recommended. Here, here, here and here for example.