Last Friday I went to a fascinating symposium at the Columbia Law School: “The Google Books Settlement: What Will it Mean for the Long Term?” The symposium included presentations by US copyright register Marybeth Peters, and antitrust expert Randal Picker [slides], followed by panels featuring speakers from the legal, publishing, and library world, as well as a few folks representing Google, authors, international publishing groups, and photographers.  The audience filled most of a large room, and included listeners from all these communities.  I prepared for the day by going through Walt Crawford’s lengthy summary of the settlement and its commentators, which I recommend to anyone needing to get up to speed on the issues.

Cornell’s Peter Hirtle has posted a useful summary of the proceedings, and I’ve also seen some interesting commentary on aspects of the meeting from Peter Brantley and Adam Hodgkin.  (The session was also live-Twittered.)

What I heard from audience members, both during and between sessions, was interesting as well.  Like Peter Hirtle, I didn’t hear many people saying directly that the settlement should not go forward (though I did hear that from a few people who were there but not on the stage).  I did hear repeated concerns over how the deal came about, and how it made substantial changes to the contours of copyright through class action litigation rather than legislation; and I also heard substantial concerns over the monopolies given to Google and the Book Rights Registry, and how those monopolies might stifle innovation and competition, drive up prices for online access to books, and infringe on rights of readers.  (Despite its name, the Book Rights Registry is not simply a passive store of information; it also actively negotiates terms and prices of online book uses on behalf of rightsholders, and manages the distribution of revenues from these uses.)

There was also some concern about whether those not involved in the negotiations, such as small publishers, unknowing owners of out-of-print works, foreign authors and publishers, and illustrators and photographers, were being properly respected.  Though with these latter concerns, there seemed to be more of a desire for a voice and piece of the action than a desire to stop the settlement from happening.

My basic take on the settlement didn’t change much. I’m guardedly hopeful about it, and would much rather see the settlement go forward than fail, because of the new and enhanced access it will give to millions of books for readers throughout the US.   That’s not to say it doesn’t pose some problems and dangers, many of the relevant ones having been  well-expressed by James Grimmelmann back in November. (Grimmelmann made additional remarks in one of the panels.)  The symposium did give me some new appreciation of some of the pitfalls to watch for, and some more ideas on how libraries might respond to them.  It also gave me a stronger impression that trying to modify the settlement itself is not likely to be a very fruitful response; my lay understanding is that the judge will likely just rule up or down on it with little or no modifications, with any major changes in terms requiring starting over negotiations with all the parties involved.

Still, there were some important constituencies that weren’t really addressed in the formal sessions.  One of them, noted late in the day by Harvard’s Robert Darnton, was individual readers.  (If you haven’t read Darnton’s pessimistic take on the settlement, or the response from Michigan’s Paul Courant, who was also there, you should.)  But another, I’d argue, was libraries as active agents in shaping the future of reading in the electronic age.  For libraries, I kept hearing questions like: Should they endorse or protest the settlement?  Should they buy or forgo the institutional subscriptions that will be offered?  Should they accept or pass on any of four digitization partnership deals that the settlement allows?  These are important questions, but they’re basically all reactive: choosing to go with or against the flow, without considering how we might shape or rechannel it.

How might libraries reshape this flow? Going into full detail would require a number of additional blog posts at least, but among other things, we can work individually and collectively to

• Safeguard readers’ privacy (as we do now to some extent via proxy servers).
• Ensure the preservation of digital and print books (through efforts like Hathi Trust and shared print collection management).
• Collectively press for reasonable pricing and terms of use, respecting traditional user rights under copyright law, for institutional subscriptions.
• Encourage Congress to pass legislation that would give other digitizers the rights to offer similar services to what Google will; enable the more widespread use of orphan works; and apply appropriate oversight to the monopolistic aspects of the Book Rights Registry.  In her talk, Marybeth Peters said that no one from Congress had asked the Copyright Office for comment on the proposed settlement.  While her office doesn’t appear interested in petitioning Congress, libraries can and should do so.
• Integrate book digitization (and not just Google’s) with our library’s operations and services, so our users can make the most of what’s available digitally.   This can include integrating digital copy information and links in our catalogs, and pressing for links from those copies back to our library services (not just indirectly via OCLC’s “find in a library” link, but also direct links through technologies like OpenURL).
• Promote and support the widespread, open sharing of information about digital books and their rights.  This information will make it easier to expand and improve what’s available online, and bring it to the widest possible audience.  We can’t rely on Google and the Registry to do all the work for us. Google’s own digitizations and metadata will not be perfect or incomplete.  The Book Rights Registry will not be freely sharing all of its information, and in any case will be more interested in paying rights claimants than in, say, enhancing access to the public domain.  If we want to solve this problem, we’ll need to continue to address some more general issues with sharing metadata more broadly.

We don’t have to wait for the settlement to go forward, or break down, to start thinking and experimenting in these areas.  I hope that a lot of libraries will be considering the issues raised in the Columbia symposium, and deciding how best to act (and not just react) to best serve our readers in a world where millions of books are accessible online.