Will the Google Book Search settlement agreement have changed much when it’s unveiled in federal court on November 13? The Open Book Alliance (OBA), which includes industry heavyweights like Microsoft and Amazon, the Internet Archive, and the New York Library Association and SLA, has issued a caution about the settlement document expected
To “help bring about the mass digitization of books in a way that embraces openness, competition and the public good,” the OBA has set out baseline requirements that reflect the concerns of critics, objectors, and, perhaps most crucially, the U.S. Department of Justice.
The settlement must not grant Google an exclusive set of rights (de facto or otherwise) or result in any one entity gaining control over access to and distribution of the world’s largest digital database of books. The settlement must result in the creation of a true digital library that grants all researchers and users, commercial and non-commercial, full access that guarantees the ability to innovate on the knowledge it contains.
The settlement cannot provide for competition by making others engage in future litigation.
Congress must retain the exclusive authority granted by the U.S. Constitution to set copyright policy.
Courant vs. Samuelson, redux
Also, in dueling essays in The Economist, University of Michigan Library dean Paul Courant and University of California, Berkeley law professor Pamela Samuelson reprise some of the arguments they raised last month during the D is for Digitize conference.
As excerpted by New York Law School professor James Grimmelmann on his blog, The Laboratorium, Courant still supports the settlement but makes a key concession regarding the ability of others to scan first and gain permissions later:
Thus a revised settlement (as suggested by the U.S. Department of Justice) that provided competitors with the ability to use the orphan works on the same terms as Google, or legislation with similar consequence, would be an unambiguous improvement over the original settlement.
Samuelson, as noted by Grimmelmann, still has major qualms:
Even if the amended settlement accommodated core objections, I question whether the class action settlement process can be used to achieve such a massive restructuring of the market for digital books as the GBS deal would bring about… The broader the settlement’s scope, the greater the size of the class, the more forward-looking are its terms, and the more the agreement releases the defendant from liability for future conduct, especially conduct different in kind from the issue in litigation, the less likely it is that a judge will or should approve it. The GBS deal is troublesome on all of these grounds, so the parties should be seeking a legislative, not a judicial, blessing for it.