Revised Google Book Search Settlement Filed

Writer Bewareby Victoria Strauss

On Friday, Google, the Association of American Publishers, and the Authors Guild filed a revised version of the Google Book Search Settlement. It’s now up to Judge Denny Chin to set dates for a notice period, an objection hearing, and the final Fairness Hearing.

A brief overview of the issues that led to the revision, and a summary of some of the changes, is provided by the New York Times.

One of the major concerns of Settlement critics, and also of the Department of Justice, which has urged the courts to reject the Settlement because of anti-trust concerns, was the issue of orphan works (in-copyright works whose authors can’t be found), and the fear that Google would gain a de facto digital monopoly over those works. The revision establishes the position of an “Unclaimed Works Fiduciary,” or trustee, who will be responsible for all decisions about orphan works, including whether to license rights in those works to third parties. Another potential monopolizing provision, which according to the Times “was widely interpreted as ensuring that no other company could get a better deal with authors and publishers than the one Google had struck,” has been dropped.

The concerns of European publishers, which have been distressed by Google’s digitization of thousands of European-published books included in US libraries (despite the fact that the Book Search Settlement was supposed to pertain only to US copyright holders), have been addressed by restricting Google’s database to books published in the US, Canada, UK, and Australia.

Another major change (per the Authors Guild’s upbeat overview of the revision): Google’s ability to monetize the database–which in the original Settlement was essentially unlimited–has been curtailed. “Future business models have been pared down to three: individual subscriptions, print-on-demand, and digital downloads. None of these business models can be implemented by Google without approval of the Registry’s board, and none can be implemented without notice to all claiming rightsholders, who will have the absolute right not to participate.”

Many commenters feel that substantial concerns remain.

According to Settlement critic James Grimmelman, a Google monopoly still looms. His argument is too subtle to summarize here, but he sums it up this way: “Settlement 2.0 confirms that Google will have the only game in town for the unclaimed works…The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation.”

The Electronic Frontier Foundation, for which privacy was a significant issue, feels that the revision leaves those concerns unaddressed. The ACLU agrees.

The Open Book Alliance, which has formally objected to the Settlement, calls the revision “a sleight of hand.” (What the OBA would have liked to see in an amended Settlement is described here.)

And as blogger Danny Sullivan points out in his coverage of the Settlement revision press conference, the copyright concerns that sparked the original lawsuit–that Google has turned copyright law on its head by requiring rightsholders to opt out of its database rather than in–remain entirely unaddressed (though it’s my impression that this issue is falling ever more steadily into the background as the Settlement grinds its way toward approval).

Google’s own summary of the revisions can be seen here.

Much more information, including discussions, objections, and documents, is available at The Public Index.

The deadline for claiming payment for books that were digitized without permission has been extended from January to March 31, 2010. However, given the changes, it would seem that consideration should also be given to those of us who, like me, opted out of the original Settlement, and now might want to reconsider. None of the many articles I’ve read address this issue.

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