Transcript Book Search Settlement The original Google Book Search project combined two related programs: 1)The Partner Project. 2)The Library Program.

Book Search Settlement
The original Google Book Search project
combined two related programs:
1)The Partner Project.
2)The Library Program.
Books received
from publishers
Availability:
depending on
publisher’s decision
Permits view of entire pages from the book,
but not all the pages are available for view.
Scanned from
public libraries
In-copyright books
/ orphan books
Public domain
books
Snippets
Browse full-text or
download PDF
Each snippet contains only a few lines, and
only three snippets could be shown per book
• Google did not seek permission due to
[proclaimed] enormous transaction costs.
• Opt-out option:
– Copyright owners could request Google not to
include their works in the database.
• Opt-in option – Partner Program:
– By doing so copyright owners could share revenue
with Google.
• Scanning involved copying which may infringe the
copyright owner’s rights.
• Google also converted files into searchable
formats, using Optical Character Recognition
(OCR) software.
• In addition- Google made copies of each file for
participating libraries.
•
• Google could escape liability only if its copying
is permitted under the fair-use doctrine.
• Arriba Soft, a commercial search engine,
created a database of thumbnail images
copied from the internet.
– The thumbnails were displayed in response to
specific search queries, and each thumbnail linked
to the original website.
• Kelly, a photographer, whose images were
included in the database, sued for copyright
infringement.
• The trial and the appellate court both found
Arriba Soft’s use to be fair:
– Arriba used the work in a different manner, and
therefore did not supplement the original work.
– Search engines have an important social utility.
– The search engine did not harm the sales of the
images – on the contrary, it could help increase
sales by directing viewers to Kelly’s website.
GOOOOO argued it had an even stronger case
than Arriba:
– The snippets show even less of the work than
Arriba’s thumbnails.
– An index to “all the books in the world” may be
even more useful than a search engine.
– Google allowed an opt-out option.
The authors and publishers on the other hand,
argued that Google’s Book Project was very
different from the Kelly case:
– Kelly willingly placed his photo on his website,
knowing it would be subject to search engines, yet he
did not use “do not enter” software signs.
– Google’s use harms the market for digital archives of
books.
– Google created a risk of wide-spread infringement by
digitizing the books.
– Kelly involved only one plaintiff.
– Other Related Cases
So what does the goooogle
Books Settlement include?
• Looking at the past – Google will be released
from liability for its previous scanning and
displaying of works, in exchange for one-time
payment of about $125 million.
• Looking forward – Google will be allowed to
continue scanning and displaying books, in
exchange for 63% of its net revenue from
advertising.
• A Book Rights Registry (BRR) will be established.
• An Institutional Subscription System will be adopted.
• For orphan works this means that Google can go on with
its copying while holding a share of the revenues “in
trust” for “missing” rights holders.
• Owners of copyrights in books created prior to January 5,
2009, may opt-out from the settlement or opt-in to other
terms with Google.
• Does not apply to periodicals.
• Applies only to US and foreign owners of ”US copyright”.
Owners can opt-out from the settlement, or permit
different uses (remove books, exclude users etc.)
The settlement needs to be approved by the court
deciding the class action.
The BRR’s goal is to mediate between Google and
copyright owners:
• The BRR will take payments from Google and pass
then on to the appropriate authors and publishers.
• The BRR will deliver copyrights owner’s requests to
Google regarding the level of access allowed to their
books.
BRR
Copyright
holder
• Will allow Google to sell digital access to entire catalog
of scanned books to companies, colleges and potentially
even individuals.
• A Public Access Service will provide a very restricted
version of the Institutional Subscription to colleges and
public libraries- for free.
• A Consumer Purchase System will allow Google to sell
electronic access to the complete version of individual
books.
• The revenues will flow to copyright owners based on a
63/ 37 split.
• This program will allow researchers to run gigantic
automated statistical studies on the entire body of
scanned books.
• For this use copyright holders will not be paid, under
the assumption that the works are not used by
people reading portions of the books.
• The libraries that have been supplying books through
the Partner Program are not parties to the lawsuit.
• However, the settlement includes a provision that
enables them to sign an agreement with the BRR –
effectively releasing them of liability.
• A Fully Participating Library (FPL) will provide Google
with copyrighted books to scan into its database.
• Libraries that receive from Google digital copies
(LDC) of their books, must agree to keep them under
secure and limited access conditions.
• FPL’s must sign an agreement with BRR which
releases them from liability of infringement on one
hand, but also limits the library’s use of the digital
copy on the other hand.
The settlement creates three “products” for US users
Previews
Consumer
Purchase
Institutional
Subscription
Availability of an individual book for each product
depends on its status
Book Status
Pre- Settlement
Post- Settlement
Public domain
In copyright, not
commercially
available
In copyright,
commercially
available
100%
100%
3 snippets/ book 20%*
3 snippets/ book, Bibliographic
and/or Partner
information only
Program
• Users can buy online access to the full text of
a specific book.
• Consumer can print 20 pages at once;
cut/paste 4 pages at once; can make book
annotations.
Price: Either set by copyright holder, or Google
will set price algorithmically between 1.99$ at
29.99$ (about 80% of books are priced below
10$).
• Institutions can purchase annual subscription
to allow access to full texts.
• Access will be limited to “appropriate
individuals” within the institution.
• User can: print 20 pages at once; cut/paste 4 pages at
once; make book annotations; provide links to e-reserves
or course management systems.
• Within 5 years, Google must provide previews, public
access service and institutional subscriptions for 85% of
the copyrighted in-print books it has scanned.
• Google must make reasonable efforts to accommodate
for users with print disabilities, including: screen
enlargement, voice output and Braille displays.
• Financial obligations: One time payment of at least 60$
to each book + revenue sharing - 63/37 split.
Advantages of the
Books Settlement
• The BRR resolves the claims of all class members:
publishers, authors and even absent members.
• Financial advantage - Google makes substantial
revenues from selling ads, subscriptions and e-books
– while the publishers and authors get the lion’s
share of these revenues.
The settlement has the potential of providing access to a digital
library of millions of books• For most books users can see up to 20% for free (rather then
just 3 snippets).
• Users can also gain free access to full text through limited
public access services.
• Consumers can purchase access to specific books.
• Universities, schools, companies and other institutions can
subscribe to the full database of e-books.
• Scholars can perform non-consumptive research.
• Participating libraries receive digital copies of their books.
• Ad’s: Google promises not to use pop-up or pop-under
advertisements, and the BRR will to take action against
authors presenting their books with “animated, audio or
video” ads.
• Fair-Use rights: the Institutional Subscription terms will not
“prohibit any use… that would otherwise be permitted under
the Copyright Act” – this [seemingly] retains users’ fair use
rights.
• By adopting the BRR mechanism, the settlement
addresses one of the central problems, regarding
clearing the rights to millions of books -transaction
costs and uncertainty
• Google can continue scanning books into its search
index.
• Google will not pay royalties on scanning or searching.
The payment begins only once a user clicks on a page
of a specific book.
• Google still gains 37% of the revenue from the project,
while avoiding liability for infringement.
Disadvantages of the
Books Settlement
The BRR is a centralized entity, with substantial
authorityto negotiate on behalf of owners, approve the
security standards and has broad discretion to work
out the revenue splitting formula between publishers
and authors.
• The settlement recognizes this danger, and
accordingly puts limits on the BRR:
• Limits the BRR from representing subgroups of copyright
holders.
• Ensures licenses granted are non-exclusive.
• Ensures opt-out options, even after several years.
• However, The BRR is still an anticompetitive threat
because of it’s class action binding effect.
• The settlement does not formally prevent anyone
involved from doing deals with others - however the
issue of transaction costs could de-facto prevent
competitors from entering the market.
• Furthermore, for 10 years the BRR can’t give anyone
else better terms than Google gets (“most-favorednation” clause).
Thus, Google would probably become the only one
that can provide scanning and searching books
services on such a scale.
• A no-price discrimination clause should be included
in the settlement.
• Reader privacy protection should be insured- the
settlement currently does not include an explicit
reader privacy guarantee .
• Accountability and transparency should be further
increased.
• Purchasing subscriptions and other e-services could
have a budget impact on institutions.
• Insufficient public access.
• Such a comprehensive digital library is far too important
to be trusted in the hands of private corporations – Is
there a “public-failure” ?
• Quality concerns:
• Discretion to exclude – “holes” in books.
• Research will decline – users will scan or preview rather than
read.
• Chilling effect on fair use (for both private users and
libraries).
• General change in the roll of libraries.
Thank You