Academics, ProQuest, Networks Object to Google Settlement

Endorsers include partner libraries, distance learning group, Canadian urban libraries

Norman Oder & Josh Hadro -- Library Journal, 09/10/2009

• Academic authors argue for major modifications
• Partner libraries express support, with concerns
• What about dissertations?

Final comments have been submitted to a federal court overseeing the Google Book Search settlement, pending a hearing in New York on October 7, and LJ highlights some of the most interesting.

In a letter signed by 64 academic authors and researchers, Pamela Samuelson, Professor of Law & Information, University of California, Berkeley, asked Judge Denny Chin to condition his approval of the Google Book Search settlement on several modifications that would be fairer “toward academic authors who constitute a far more sizeable proportion of the Author Subclass than the members of the Authors Guild do.”

The signatories agree that the settlement would bring more access to books, but could transform “the public good of the traditional library into a commercial enterprise controlled by two complementary monopolies, Google and the Book Rights Registry.”

“Academic authors would, we believe, have insisted on much different terms than the Authors Guild did, especially in respect of pricing of institutional subscriptions, open access, annotation sharing, privacy, and library user rights to print out pages from out-of-print books,” Samuelson wrote. “Academic authors would also have pushed harder than the Authors Guild seems to have done for more researcher-friendly non-consumptive research provisions and for commitments to quality scans and metadata.” (Academics at the University of California have expressed similar concerns.)

“We find the GBS Settlement Agreement to be very confusing and opaque,” Samuelson wrote, enumerating: “What kinds of books will be in the institutional subscriptions? Will public domain books be included in these subscriptions? Are there any kinds of books that Google will not scan or include in the corpus? How, if at all, will Google exercise its right under the Settlement Agreement to exclude up to 15% of books from the corpus for editorial and non-editorial reasons? What GBS content will be available to public libraries?”

If the court disapproves of the settlement, Samuelson wrote, “we doubt that the future of public access to books in digital form would be as dim as Google predicts,” suggesting that work would continue and that Google would have “much stronger incentives to support orphan works legislation… Congress is probably the more appropriate venue for addressing the mass digitization of books.”

Networks object
Lyrasis, NYLINK, and the Bibliographical Center for Research (BCR) filed an objection saying that, while the settlement “has the potential to provide unprecedented public access to a digital library containing millions of books,” if not modified, it could lead to “unwarranted exclusion of library consortia.”

They said that the term “Institutional Consortium” is defined as including members of the International Coalition of Library Consortia with the exception of OCLC-affiliated networks. They said that there’s no consensus as to the definition of OCLC-affiliated network and that, even if there were, the understanding became moot because of recent changes in OCLC business arrangements.

ProQuest objections
Library vendor ProQuest has also objected concerning the academic dissertations and theses it has published since 1939, roughly from the beginnings of its predecessor, UMI.

The terms of the settlement are overly broad, ProQuest argues, and could potentially include these dissertations and theses under the currently proposed definition of "book.". This would give Google an unfair advantage over material ProQuest claims it has taken pains to collect in full compliance with existing copyright requirements, working directly with copyright holders individually.

ProQuest asserts that, "if Google is permitted to leverage Court approval of this Proposed Settlement beyond traditional books to include specialized smaller but invaluable businesses such as dissertations publishing, unintended, unfair and irrevocable damage will be done to the health of many market segments."

ProQuest also argues that, if dissertations are treated as books and covered by the settlement, funding would be a major concern once the interests of millions of dissertation authors are taken into account. Even if only half of the 2.3 million authors of dissertations estimated by ProQuest to be in copyright were granted $60 payment according to the settlement, this would still amount to $69 million, more than the $45 million total set aside by the Book Rights Registry (BRR) to pay all rights holders. Moreover, ProQuest indicated that it "would be obliged to file with the BRR as a Claimant acting on behalf of those RIghtsHolders.”

Periodicals are a secondary concern for ProQuest as well, which argues that many periodicals and serials are hard bound by libraries as books for ease of use after a certain period, and that these are then scanned by Google without consideration of their content type. This leads to their inclusion in the Book Search, with removal amounting to an "opt out" option only, which ProQuest finds insufficient. As the objection notes, "'Periodicals,' while excluded under the terms of Proposed Settlement, as a practical matter are not differentiated in the actual corpus."

Partner supporters
More Google partner libraries have expressed their support. Cornell University Librarian Anne Kenney, for example, wrote that libraries couldn’t pursue mass digitization on their own. 

“In one project, for example, the Library averaged over $50 per title in staff time to locate copyright owners, and even then was able to locate only half of the rights holders,” she commented. “Even the proposed legislation on orphan works, which would allow the Library to provide access to those titles whose rightsholders could not be found, would not have saved the initial expense of trying to locate those rightsholders.”

Kenney did acknowledge imperfections in the settlement, suggesting that “the membership of the proposed Books Rights Registry be structured to represent all of the members of the class, including academic authors,” and the court take steps to prevent “exploitive pricing.”

Similarly Karin Wittenborg, University Librarian at the University of Virginia, expressed support for the settlement while acknowledging that “ (1) libraries as the holders of the actual texts were only indirectly and partially included in the settlement discussions; (2) academic writers and scholars were not consulted as they should have been; (3) the potential for monopolistic control over pricing because of the uniqueness of the digital resource is real; and (4) concerns relating to patron privacy in accessing a vast new digital library have not yet been adequately addressed.”

Still, she was optimistic: “Countering these concerns are the settlement’s significant practical accomplishments, the review and accountability mechanisms that have been built into its core provisions, the ubiquitous access that is essential to Google’s core business model that should prevent pricing that puts subscriptions out of reach, public review, and the possibility of ongoing judicial and governmental supervision.”

Expanding access
The United States Distance Learning Association said that the settlement would “dramatically support” its goals, as it would increase the resources of schools and universities that provide distance learning.

The Canadian Urban Libraries Association offered general support to the settlement, arguing that, without such a settlement, the probability of a “subscription-based service with this vast body of work being available outside the United States is very unlikely.”

The organization said it shares the concerns of colleague library organizations in the United States, but reiterated its support for the concept.

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At Congressional Hearing, Register of Copyrights Slams Google Settlement

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