Google Book settlement: Alternatives and alterations

In my previous post, I worried that the Google Books settlement might fall apart in the face of opposition from influential parties like the Copyright Office, and that such a collapse might deprive the public of meaningful access to millions of out of print books.

Not everyone sees it that way.  I’ve seen various suggestions of alternatives to the settlement for making these books available.  In this post, I’ll describe some of the suggested alternatives, explain why they don’t seem to me as likely to succeed on their own, and discuss how some of them could still go forward under a settlement.

Compulsory licenses

Both the Open Book Alliance’s court filings and the Copyright Office’s testimony mention the possibility of compulsory licensing, which essentially lets people use a copyrighted work without getting permission, provided that they meet standard conditions determined by the government.  Compulsory licenses already exist in certain areas, such as musical performances and broadcasts.  If I want to cover a Beatles song on my new record, I can, as long as meet some basic conditions, including paying a standard royalty.  The (remaining) Beatles can’t hold out for a higher rate, or say that no one else is allowed to cover the recordings they’ve released.

The Google Books settlement has some similarities to a compulsory license, but with some important differences, including:

  1. Book rightsholders can choose to deny public uses of their work, or hold out for higher compensation, which they generally can’t do under a compulsory license regime. (They have to explicitly request this, though.  So it’s really what one might call a “default” license.)
  2. The license has been negotiated through a court settlement rather than Congressional action. (This was one of the main complaints of the Copyright Office.)
  3. The license given in the settlement is granted only to Google, not to other digitizers. (This has justifiably raised monopoly concerns.)

I do have a problem with the last difference as it stands.  I’d like to see the license widened so that anyone, not just Google, could digitize and make available out of print books under the same terms as Google. But there are various ways we can get to that point from the settlement.  The Book Rights Registry created by the settlement could extend Google-like rights to anyone else under the same terms, as the settlement permits them to do.  The Justice Department could require them to do so as part of an antitrust supervision.  Or Congress could decide to codify the license to apply generally.  (They’ve done this sort of thing before with fair use and the first sale doctrine, both of which originated in the courts.)

If the settlement falls apart, though, negotiation over an appropriate license has to start over from scratch, and has to persuade Congress to loosen copyrights for benefits they might not clearly see. As I suggested in my previous post, Congress’ recent tendencies have heavily favored tightening, rather than loosening, copyright control.   And I haven’t yet seen a strong coalition pushing for laws granting compulsory (or default) licenses that are as broad as would be needed.

For instance, the Open Books Alliance’s amicus brief suggests the possibility of a compulsory license, but only as “but one approach”, and that suggestion seems as much aimed at getting hold of Google’s scans as licensing the book copyrights themselves.  Their front page at present shows no explicit advocacy of compulsory copyright licenses.  Perhaps they will unite behind a workable Google Books-style compulsory license proposal in the future, but I’m not counting on that.  (Update: Just after I posted this, I saw this statement of principles go up on the OBA site.  We’ll see what develops from that.)

The Copyright Office’s congressional brief also mentions but tries to damp down the idea.  It repeatedly characterizes compulsory licensing as something that Congress only does “reluctantly” and “in the face of marketplace failure”. But despite its strong words on other subjects, it does not appear concerned over whether we in fact have a marketplace failure around broad access to out-of-print books.

Orphan works legislation

The Copyright Office filing also suggests passing orphan works legislation (as have various other parties, including Google).  An orphan works limitation on copyrights would be nice, but it’s not going to enable the sort of large, comprehensive historical corpus that the Google Books settlement would allow.

As Denise Troll Covey has pointed out, the orphan works certification requirements recommended in last year’s bill, like many other case-by-case copyright clearance procedures, are labor-intensive and slow, and may be legally risky.  (In particular, the overhead for copyright clearance, not including license payment, can be several times the cost of digitization.)  Hence, these methods are not likely to scale well.  And they would not cover the many out-of-print books that aren’t, strictly speaking, orphans.  I don’t consider it likely that a near-comprehensive library  of millions of out-of-print 20th century books will come about by this route alone any time soon.

Even so, despite its limited reach, last year’s orphan works legislation was stopped in Congress after some creator organizations objected to it.  Some of the objectors, including the  National Writers Union and the American Society of Journalists and Authors, are now members of  the Open Book Alliance, which makes me wonder how effectively that group would act as a united coalition for copyright reform.

Private negotiation

Some critics suggest that Google and other digitizers simply negotiate with each rightsholder, or a mediator designated by each  rightsholder.   It’s possible that this actually might work for many future books, if authors and publishers set up comprehensive clearinghouses (like ASCAP and Harry Fox mediate music licensing).  If new books get registered with agents like these going forward, with simple, streamlined digital rights clearing, private arrangement could work well for future books both in-print and out-of-print.  Indeed, Google’s default settlement license privileges don’t apply to new books from 2009 onward.

But it’s much less likely that this will be a practical solution to build a comprehensive collection of past out of print books from the 20th and early 21st century, because of the sheer difficulty and cost of determining and locating all the current rightsholders of books long out of print.   The friction involved in such negotiation (involving high average cost for low average compensation) is too great.  Without the settlement and/or legal reform, we risk having what James Boyle called a “20th century black hole” for books.

Copyright law reform

As James Boyle points out, it would solve a lot of the problems that keep old books  in obscurity if books didn’t get exceedingly long copyrights purely by default.  It would also help if fair use and public domain determination weren’t as risky as they are now. I’d love to see all that come to pass, but no one I know that’s knowledgeable on copyright issues is holding their breath waiting for it to happen any time soon.

Moving forward

As I’ve previously mentioned, the settlement is imperfect.  It may well need antitrust supervision, and future elaboration and extension.  (And I’ve suggested some ways that libraries and others can work to improve on it.)  It’s still the most promising starting point I’ve seen for making comprehensive, widely usable, historic digital book collections possible.  I hope that we get the chance to build on it, instead of throwing away the opportunity.  In any case, I’d be happy to hear people’s thoughts and comments about the best way to move forward.

Google Books, and missing the opportunities you don’t see

The Google Books settlement fairness hearing is still a few weeks away, but in the last few weeks the deal has been talked and shouted about with ever-higher volume.  Still, it wasn’t until the other day, in a House Judiciary Committee hearing where US Copyright Register Marybeth Peters came loaded for bear, that I started thinking there was a significant likelihood that the settlement might fall apart.

There are a number of people in different communities, including libraries, who hope this  happens.   I’m not one of them.  I’m not a lawyer, so I can’t comment with authority on whether the settlement is sound law.  But I’m quite confident that it advances good policy.  In particular, it’s one of the best feasible opportunities to bring a near-comprehensive view of the knowledge and culture of the 20th and early 21st centuries into widespread use.  And I worry that, should the settlement break down, we will not have another opportunity like it any time soon.  The settlement has flaws, like the Google Books Project itself has, but at the same time, like Google Books itself, the deal the settlement offers is incredibly useful to readers, while also giving writers new opportunities to revive, and be paid for, their out of print work.

The potential

Under the status quo, millions of books are greatly under-utilized.  It isn’t just that people don’t have easy access to them; it’s that people don’t know that particular books useful to them exist in the first place.  I work in a library that has collected millions of volumes, many of which are hardly ever checked out. Not only would Google’s expanded books offerings give our users access to millions more books, but it would also make millions of books that we already own easier for our users to find and use effectively.

Want to know what books make mention of a particular event, ancestor, or idea?  With existing libraries, and good search skills, you might be able to find books, if any, that are written primarily about those things. But you’ll probably miss much other information on those same topics, information in works that are primarily about something else.  With expanded search, and the ability to preview old book content, it could be much easier to get a more comprehensive view on a topic, and find out which books are worth obtaining for learning more.

And if that’s a big advance for people in big universities like ours, it’s an even bigger step forward for people who have not had easy access to big research libraries.  Once a search turns up a book of interest, Google Books would offer a searcher various ways of getting that book: buying online access; reading it at their library’s computer (either via a paid subscription, or via a free public access terminal); buying a print copy; or getting an inter-library loan.  These options all involve various trade-offs of cost and convenience, as is the case with libraries today.  While one could wish for better tradeoff terms, the ones proposed still represent big advances from what one can easily do today.

And as with other large online collections like Wikipedia or WorldCat, or the Web as a whole, the advantages to large book corpuses like Google’s aren’t just in the individual items, but in what can be done with the aggregation.  I don’t know exactly what new kinds of things people will find to do with a near-comprehensive collection of  20th century books, but having seen all that people have done with other information aggregated on the Internet, I’m confident that there would be many great uses found, large and small.

The peril

If the Google settlement does fall apart, are we likely to see any collection like the one it envisions any time soon?  I’m not at all confident we will.  The basic problem is that, without some sort of blanket license, it’s impractical (and in the case of true orphan works, currently impossible) to clear all the copyrights that would be required to build such a collection.  This represents a failure in copyright law.  Instead of “promot[ing] the progress of science and useful arts”, as the Constitution requires, current US copyright law effectively keeps millions of out-of-print books in obscurity, not producing significant benefits either to their creators or to their potential users.

The current proposed Google Books settlement is, among other things, an attempt to get around this failure.  If the settlement fails, would the parties make a new agreement that would allow a readable collection of millions of post-1922 online books?  The divergence in the complaints I’ve seen (for instance, on one hand that the collection would cost readers too much, and on another hand that it would pay writers too little) suggest the difficulty of coming to a new consensus that satisfies all the parties, if negotiations have to start again from scratch.  And, if the arguments of the Copyright Office and some of the other parties carry the day, even if such an agreement were reached, the agreement could not be ratified by a court anyway.  Instead, it would require acts of Congress, and maybe even re-negotiations of international treaties.

Based on past history, there are two things that would make the government likely to reform copyright law to permit mass reuse of out-of-print books.  Ether there needs to be a clear example of the benefits of such a reform, or there needs to be a strong coalition pushing for such a reform.  Clear examples have usually come from businesses that are actually in operation; for example, the player piano roll industry that successfully persuaded Congress to streamline music copyright clearance in the previous century (or the Betamax that persuaded a slender majority of the Supreme Court to declare the VCR legal).

If the proposed Google Books library service goes online, even under a flawed initial settlement, it too could provide a compelling example to encourage general copyright reform.  But without such an example, it can be hard to move Congress to act.   It’s easy to undervalue the opportunities you don’t clearly see.

What about a strong coalition pushing for a reform in the law that would let anyone create the comprehensive online collections of out of print books I’d described?  I’d like to see one, but I haven’t yet.  (Yes, there’s the Open Book Alliance, but its members don’t seem to be distinctly allied in anything particular other than objecting to the settlement.)  In my next post, I’ll discuss reforms that might do the job, and the reasons I believe they would be difficult to enact without the settlement.