Google Book Search settlement

I'd heard a lot about the Google Book Search settlement before coming here, but not really looked into it in much depth, so I was interested to attend this session exploring the current state of play and how it is likely to affect not only libraries, but the wider world of books, access to information, and copyright law. The speakers at this session included a representative from Google and several librarians who have examined the settlement and its implications in detail. We were given a brief run down of what the settlement means, both its intentions and the potential consequences, both good and bad, and it was clear (as I already knew) that this is a highly controversial area.

The ALA has already commented on the settlement, but it is still being looked at by a lot of different organisations, including the Department of Justice, before more hearings due in October. So far, the University of Michigan and two other existing Google partner libraries have modified their agreements with Google in order to take advantage of the new model. The settlement basically gives Google the right to provide and charge for access to the full-text of in-copyright material, unless the copyright holders opt-out. In-print material will be scanned and indexed but not made available unless the rights-holders authorise it. Out-of-print (but still copyright) material will be made available via different levels of access - preview (as at the moment), or purchased either individually or institutionally. The pricing model will be negotiated with the rights-holders - the Book Rights Registry, authors and publishers - but libraries will be able to appeal if they feel the pricing is unfair (it is intended as compensation for rights-holders, not as profit), and libraries that provide material for scanning will get their own digital copies of the books in their collections. The settlement only applies to US law and material copyrighted in the US, but as with everything on the internet, the implications are international, and as Google is a global company so it can be seen as a sign of the way things may go elsewhere.

The librarian-speakers ranged from very positive to highly critical of the settlement. All agreed that Google's intentions are for the best, and that their goal of digitising and making available such a vast amount of material is admirable. The ideal of anyone anywhere in the world being able to read pretty much anything ever published instantly online is indisputably a fantastic one. Libraries have attempted mass digitisation themselves but without much success, so having Google come along with the money and the resources to do it can be seen as a gift. However there are some serious concerns that need taking into consideration, and cast doubt on whether this particular settlement is going to be a good thing for libraries, for the general public, and for information freedom. I haven't looked into this in much detail myself, so the below is a summary of arguments made by the panellists, and I think I need to read more in order to make up my mind as to how much of a problem these things are.

• Librarians and readers are not being represented in the pricing negotiations, which are closed for Google, the Book Rights Registry and representatives of authors and publishers. Will the right to appeal be sufficient, or will this mean that what's best for readers will lose out to what's best for copyight holders? The settlement as is gives the balance of power to the copyright holders in the decisions about pricing, security and the punishment for perceived infringement, and will allow them to sue libraries if they think this is happening.
• The public access model (1 terminal per library) is unlikely to be sufficient for most libraries, so all libraries will end up having to subscribe. Google will have a virtual monopoly over the digital version of the vast majority of content produced during the 20th century - as one of the panelists claimed, this makes them the guardians of the culture of that whole time. Google might have a 'do no evil' policy now, and their intentions might be good, but we have no guarantee that will always be the case. It could be like the power that the top journal publishers now have, with their inflated prices that libraries have no choice but to pay, but even worse.
• There are severe restrictions on what can be done with content (printing etc) in order to protect copyright, but this will result in a narrowing of the definition of fair use and on what is considered the public domain. Google has always argued for a wide definition of what can be considered fair use (it's how they justified what they were doing with the preview function in the first place), but they will not need to rely on this so much following the settlement as their rights have been codified, and it may well be easier to assume things are protected than open.
• The restrictions intended to protect the copyright have big implications for privacy. In order to have and enforce these, an enormous amount of data will be collected about the user - what they are reading, how long for, what they print etc - and there is currently no provision in the settlement to make sure this data is protected.
• One of the panellists pointed out that there are problems from a legal point of view with the settlement - "bad law, even when it serves a good purpose, is problematic". The agreement is unusual because it ended up not being a compromise, as such, and actually barely concentrates on the alleged copyright infringement that started it all. Both parties, Google and the copyright holders, have a financial interest in the outcome that they got, even though Google claims not to have financial intentions.
• The all-encompassing nature of the agreement means that a huge number of non-US citizens who are affected by it due to having copyright interests in the US. International copyright treaties are supposed to ensure that governments cannot place sweeping conditions on copyright, which is just what the settlement does. It is also problematic that people actively have to opt-out, otherwise the agreement is a de facto alteration of their rights, handing a licence to Google.
• Are Google's aims and librarians' aims really compatible? We both want to improve access to information, but how do Google see libraries in this? Are we in fact viewed as obstacles to their stated goal of universal access to information?

I don't know exactly where I stand on this. I think it's clear that this is a huge deal, and sets a massive precedent. I agree with all those who say that despite everything they think Google has their heart in the right place, and genuinely want to expand access and do a good thing. But unfortunately it is not just about Google as currently exists, as it sets a legal precedent, particularly in the realm of the balance between rights-holders and users when it comes to copyright. And this is what makes me most uneasy. I hope that Google can continue to fight for freedom of information and a loose, user-focused definition of fair use, so that as much content as possible can be available freely and unrestrictedly. But if many of the concerns I heard this morning turn out to be the case, then it seems to me to run contrary to what Google has always been about, and becomes a way of protecting copyright-holders to the detriment of users.