New Google Book Settlement Tries To Appease Worries

from the doesn't-really-change-much dept

Late (very late) Friday, Google and groups representing publishers and authors squeaked in just under the deadline and put forth a revised Book Scanning settlement agreement, designed to address at least some of the concerns and complaints raised by people over the last one. If you want a good breakdown over the changes, check out Danny Sullivan's analysis or James Grimmelmann's. Not surprisingly, the Open Book Alliance is not happy, but seeing as it's a bunch of Google competitors, they were never going to be happy in the first place (and you know that press release was probably 95% written before the actual new terms were released).

In my mind, the biggest news is the new restrictions on countries from which it will scan books. From now on, the book scanning project will only scan books that have registered copyrights in the US, UK, Australia or Canada. This was mainly to address ridiculous concerns by some in Europe that this project -- to help make all books more accessible -- was somehow a threat to European culture. I was in Europe on Friday (well, Saturday there) when the announcement was made, and it actually pissed off the folks I talked to about it -- who felt that their politicians were doing serious harm to European books by having them excluded from such a useful resource.

Separately, a lot of the focus on this new agreement, as with the old agreement, is over how Google treats orphan works. Again, I have to admit that I think most people are making a much bigger deal of this than it warrants. The orphan works stuff really covers a very small number of works. And giving rightsholders ten years to claim their rights seems more than adequate to me. I just don't see what the big deal is here. The real issue is that we have orphan works at all. Under the old (more sensible) copyright regime, you actually had to proactively declare your copyright interest. The only reason we have orphan works at all is that we got rid of such a system in the ongoing effort of copyright maximalists to wipe out the public domain.

Anyway, I think this is all something of a sideshow. I still stand by my original feeling towards the settlement, which is that I'm upset anyone felt it was necessary at all. Google had a strong fair use claim that I would have liked to have seen taken all the way through the courts. And, of course, this settlement really has nothing at all to do with the main issue of the lawsuit (that fair use question) and is really a debate over a separate issue: how to take the books Google scans and trying to turn them into a "book store" rather than more of a "library." And, in doing so, the important fair use question gets completely buried -- which I find unfortunate.

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Increasing Concerns Raised Over Google's Book Search Settlement

from the a-bad-deal-for-everyone dept

When the settlement between Google and authors and publishers, over Google's book scanning project, was announced, many saw it as a big victory for everyone -- as it allowed Google to continue moving forward with plans to scan books, while also creating a "business model" for authors and publishers. However, some of us were very troubled by the implications of the settlement. It seemed clear to us that Google had a strong argument for why its actions were perfectly legal. Settling did a number of dangerous things. It failed to clear up the legal issue at all (effectively making it cost prohibitive for anyone else to work on a similar project). It set in permanent place a business model which seemed hugely bureaucratic and inefficient. That business model is basically set in stone and set by the terms of this agreement, rather than any real market mechanism. Finally, it signaled (loudly) to the world that Google was plenty willing to pay a few million dollars to settle with opponents, even when it had a strong legal position, knowing that it would make life more difficult for competitors.

It appears that as the details have come out, more and more people are troubled by what the settlement actually will mean in the long run. Robert Darnton, the head of the Harvard library system (which had already complained about the settlement) has written a thoughtful piece, detailing his worries about how this creates an effective monopoly, and the many, many downsides that this causes.

Prior to this settlement, we had been one of the bigger defenders of Google's book scanning program against those who worried that it was creating a de facto monopoly. That's because there were no exclusive agreements. However, with the new settlement, while again others could enter in theory, Google has effectively priced the rest of the market out. Prior to this, there was a reasonable argument to be made that anyone could scan books and create an index, so long as they weren't displaying too much of the books. Now... Google has set a market price of $115 million, plus a set-in-stone business model, as the entry price. It's pocket change to Google, but it's a big barrier to others.

This is definitely raising concerns from a variety of other sources, who were at least cautiously optimistic when the deal was announced. The EFF now points us to James Grimmelmann's worries about the deal (pdf). While Grimmelmann does support the deal and say it will be net positive for society, he then goes through a pretty detailed list of problems with the deal, almost all of which go back to the idea that this deal gives Google effective monopoly power over digitized books.

Finally, as for my initial fear that this would signal something of an "open season" on Google, with demanding money from Google for Google daring to provide the service of helping others find their works, we're already seeing some of that in the early stages. Some in the newspaper business are using the book settlement as a template for how Google should pay them too.

In the long run, I think Google is going to regret this deal. Yes, in the short term it handed Google a monopoly and removed a distracting lawsuit from the table. But, it did some very dangerous things that will harm Google in the long term. It signalled Google's willingness to pay up even when it shouldn't have to. It set in stone a business model way before anyone knows what the best business model is for online books. And, finally, in knocking all competitors out of the market, Google has taken away its own best incentive to continue innovating and serving customers at the best of their ability in the book search realm. The end result may be a worse product that isn't nearly as useful (and revenue generating for Google) as it would have been if it had real competition in the market.

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Short Term Profits Over Long Term Principles; Google's Caving On Book Scanning Is Bad News

from the unfortunate-reality dept

Today the tech/business press was filled with stories about how Google has settled the lawsuits from authors and publishers over its book scanning project. Google is paying $125 million, and will be changing some of how its book search system works. Authors and publishers will allow books to go online, but it locks Google in to a specific business model that might not be the most reasonable and, most importantly, it does not answer the legal question concerning the overall legality of book scanning. Pretty much any way you look at it, Google caved here -- and this is unfortunate for a variety of reasons.

Two years ago, there was a story in the NY Times about how Google's legal department saw all of these lawsuits against the company as a way to stand up on principle and make better law. Specifically, the company positioned itself as being willing to fight certain lawsuits on principle in order to get precedent setting rulings on the books in support of openness, fair use, safe harbors and many other important issues. The company suggested that, rather than settle, it would fight these lawsuits knowing that it alone, with its big war chest of money, could fight some of these battles that tiny startups could never afford.

It may not be surprising, but it's safe to say those days are long gone. We've been seeing it time and time again, from Google's decision to pay off entertainment companies not to sue YouTube to the decision to pay off the Associated Press for including its headlines in Google News. Perhaps one of the biggest legal battles, however, was over Google's book scanning project. Google took it upon itself to scan numerous books and make the results searchable online. The company put significant restrictions in place, such that it's almost impossible for someone to do a search and read the entire book that way. You can only see a few consecutive pages. You can't print. However, you can search and find new and interesting books that you might want to buy. I know I've bought dozens of books this way.

Not surprisingly, authors and publishers sued Google over this, and went around claiming how awful it was -- even though it was really not all that different than creating a much better card catalog for books. The purpose was to help people find more books that were useful, rather than to break any sort of copyright. And, in fact, studies showed that books that showed up in Google's search improved sales. In other words, it should have been a win-win situation all around. But, like so many content providers, authors and publishers falsely overvalue the content and undervalue services that make that content more valuable.

However, more important that was the simple principle of the whole thing. Last year the New Yorker ran a fantastic article explaining how having authors and publishers quibble over copyright issues while preventing the widespread archiving and sharing of information may turn out to be one of the most ridiculous arguments ever, while our culture get locked up and fades away.

So, it's quite upsetting to see Google cave on this. The settlement does not establish any sort of precedent on the legality of creating such an index of books, and, if anything pushes things in the other direction, saying that authors and publishers now have the right to determine what innovations there can be when it comes to archiving and indexing works of content. Unfortunately, this was really inevitable. As was the case with Google caving on YouTube and the Associated Press, it becomes a situation where Google realizes it can throw a little cash at the problem to make it go away -- while also creating a large barrier to entry for any more innovative startup. From a short-term business perspective this might make sense, but from a long-term business perspective (and wider cultural perspective) it's terrible.

It will only encourage more lawsuits against Google for trying to innovate, as more and more people hope that Google will settle and throw some cash their way. Furthermore, it greatly diminishes the incentives for making books more useful, and that's damaging to our cultural heritage. While it was always silly to believe that Google ever really operated on a higher principled stance, rather than a short-term business focus, this settlement is tremendously disappointing.

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Microsoft Gets Out Of Book Search, But Hands Tools Over To Libraries

from the some-good,-some-bad dept

In a somewhat unexpected move, Microsoft has announced that it's abandoning its book scanning project. While Google's book scanning project has received a lot more attention (and lawsuits) for the way it's set up, Yahoo and Microsoft teamed up with the Internet Archive to try to do something similar, though focusing mostly on public domain works and other books where they have the publishers' permission. Microsoft doesn't give an entirely lucid explanation for giving up the project, but it is handing over the scanning systems it put together to its various library partners and hoping they'll continue scanning on their own, saying:

"Based on our experience, we foresee that the best way for a search engine to make book content available will be by crawling content repositories created by book publishers and libraries."

In some ways, this is a stunning quote coming from Microsoft, admitting that a publicly available repository, created by others an which anyone can index, is better than a proprietary and controlled solution. The company is probably correct that it's better to have the content be available to any search engine rather than stuck in a silo, but there's probably much more behind this reasoning -- such as the fact that Google's book scanning project seems to be gaining a lot more traction, perhaps because Google is doing deals with libraries to scan their books for free, while the Open Content Alliance (which Microsoft's project was a part of) charges money to libraries.

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