Selective Reporting from Friday’s Google Books Settlement Workshop

More from Friday’s Google Books Settlement Workshop-

Unfortunately, this librarian missed much of the first panel, but I was able to listen to the questions/answers at the end of the panel. Siva Vaidhyanathan (of former Sivacracy and now Googlization of Everything fame and Maura Marx from Open Knowledge Commons discussed how we could learn from other projects to realize “open” digital collections in light of the settlement. As part of the proposed settlement, a Books Registry would be established to locate rightsholders and ensure that they receive the money their works earn under this agreement. Siva Vaidhyanathan stressed the importance of keeping the rights status part of the registry public and shared (separate from the payment part of the registry). (My initial reaction was whether it could be combined with OCLC’s Worldcat Copyright Evidence Registry project.) The attendees also discussed the relevance (and limitations) of the HathiTrust.

A Harvard librarian reminded people that the content in Google Books does not include everything. As a librarian (especially from a library that contributed materials to the project), I found this comment particularly important to raise because Google Books does not make very clear the scope (limitations) of its content. Libraries are also not always at liberty to share information about the parameters of the material that would (or would not) be scanned. It also reminds librarians that regardless of what happens with the settlement, there is a role we have in educating users about Google Books as an information source and opportunities that we need to seize in the digitization of material that is not covered by Google Books.

Lawrence Lessig provided a great talk (audio and video now available online), raising not only his concerns about this particular settlement, but the status of copyright, fair use and the necessity for true democratic action. What do you get for free? He likened the potential landscape with the current status of documentary films where there is complexity and an onerous culture of requiring permissions for use. (He noted that Charles Guggenheim’s daughter has been spending 20 years to get permission to put her father’s documentaries on DVD!) He fears that books will become like documentary films and cause an ecology change, where things are too communicated and encumbered by agreements that do not build in free access. He believes we are facing an obsessive permission culture, telling a great story about how someone actually ironically asked if he could have permission to quote his book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. He fears that we are in the midst of a democracy crisis where democracy is not thought of as a tool to solve policy problems, but is bound by special interests. (For those of you interested in Lawrence Lessig and the issues that concern him, you should check out his website and blog and Change Congress.)

The next panel focused a lot on the issue of orphan works, one of the most controversial aspects of the proposed settlement that has garnered much criticism and concern. John Grimmelman (responsible for the comprehensive Google Books settlement resource Public Index and Laboratorium outlined a theory for a class action. Jule Sigall of Microsoft (formerly of US Copyright Office and principal drafter of the Report on Orphan Works) also offered his perspective. Eric Saltzman of Creative Commons talked about his efforts to intervene in the case (others are appearing at fairness hearing) under the theory that there is an unrepresented interest in that any money from this settlement resulting from orphan works should go to the public domain. (Note that the Internet Archive failed at intervening.) He remarked that the suit has become tinged with collusion and personal interests and raised the question of whether the Authors Guild is indeed protecting authors with the terms of the settlement. (The guild claims it will find 80% of authors, but they have to register within 6 months of settlement.) Finally, Berkman fellow Louis Hyde presented his thoughts likening the currently proposed settlement to the classic case of plagiarism. He raised the possibility of using the money escrowed for public domain, much like historically those things in copyright eventually reverted to the public domain, treating copyright like a child to be emancipated. During the question and answer period after this panel, a staff member from Harvard’s Office for Information Systems asked whether libraries could be recognized as a class for the purposes of a class action in the case. Interesting idea!

During the several breakout sessions, I attended the one regarding open access, hosted by Berkman’s own Ethan Zuckerman and Peter Suber. There was much talk about non-consumptive access and machine learning as the research corpus created by the Google Books project has potential for people doing all sorts of non-consumptive research such as those studying lexicography. The proposed settlement suggests that while Google will not give the corpus away, it would place responsibility of access to the corpus in two research centers. Who should have that responsibility? Is it better than nothing? What can libraries participating in the Google Books project already do under their current agreements?

One of the major issues not discussed specifically in great detail at the conference is the potential antitrust implications of the settlement. Recently, the American Association of Libraries, the Association of Research Libraries and the Association of College and Research Libraries sent a letter to the DOJ’s Antitrust Division to advise the court to supervise implementation of the settlement closely, especially with regard to the pricing of institutional subscriptions and the selection of the Book Rights Registry board members (See a copy of the letter.) For some legal and policy analyses of the antitrust implications, see Randy Picker’s The Google Book Search Settlement: A New Orphan-Works Monopoly?, Mark Lemley’s An Antitrust Assessment of the Google Book Settlement and Eric Fraser’s Antitrust and the Google Books Settlement: The Problem of Simultaneity.

Hopefully, this conference did not only spur theoretical possibilities, but will result in actions in the future before we have remorse down the road. We need to remember that this is only a proposed settlement and need to be proactive before it is approved and prepared for ways of dealing with the consequences if it is approved as currently proposed. Final notes from the afternoon’s breakout sessions can be viewed on the Berkman website.

We will update the blog when more video and audio files from the conference are available. Those of you on Twitter should definitely check out #gbsworkshop09 as it captures much of the info. and commentary of those participating in person and virtually.

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