1. The Google Book Settlement:
Where are we now, and how did we get here?
Sian Meikle & Tony Horava
University of Toronto
Sept. 25, 2009

2. Outline
 Overview of settlement
 Access to Google Books
 Copyright issues
 Marketplace impacts
 Integration/curation of content
 Competition issues
 Privacy matters
 Academic freedom
 Future business models

3. Google Book Search
 Started in 2004
 42 Library Partners, many publishing partners
 Google-funded
 In-copyright and out-of-copyright material
 Google and selected library partner servers only
 10 million books to date:
 2 million public domain (20%)
 7.5 million in copyright, out of print (75%)
 0.5 million in copyright, in print (5%)
 Eventual aim: 30 million books

4. Google digital products
 Metadata
 Scanned (back files, library partner scans):
 Scanned images: TIFFs
 Access derivatives:
 JPEGs
 Image-based PDFs (one per page or one per book)
 Uncorrected OCR
 Born-digital (front file, new content)
 Digital text, xml format

5. Proposed Google Book Settlement
 2005
 US class-action lawsuit against Google
 American Publishers Association
 American Authors Guild
 October 28 2008
 proposed settlement announced
 Oct 7 2009 (moved from June 11 09)
 Originally (final) Court Fairness Hearing
 Possible outcomes:
accept, reject, court oversight
 Out of scope: change agreement
 Sept 18: US Department of Justice advises Court not to accept
settlement but to encourage further discussion
 Sept 24: Court accepts motion to delay final hearing;
will hold status conference on Oct 7 instead

6. Google Book Settlement Outline
 covers online access in US for books:
 published before January 5 2009
 covered by Berne copyright convention
 Google pays $125 million
 $34.5 million to establish Book Registry
 $45 million to rights holders for books scanned prior to May
2009 ($60 per title)
 $45.5 million for legal fees
 Split of future revenues:
 63% to copyright holders
 37% to Google

7. Google Book Settlement: Products
 Display uses (saleable products):
 Access, preview, snippets, book records
 Non display uses (free and research products):
 Display of metadata only; full-text and geographic indexing
without display of text; analytical research across corpus; and
Google R&D
 Inclusion:
 In print books: opt-in to display uses
 Out of print books: opt-out of display uses
 In print = commercially available in USA and Europe
 Products:
 Individuals: sale of perpetual access per title via Google server
 Institutions: sale of annual access to ISD

8. Book Registry
 Non-profit independent agency representing
plaintiff interests to:
 Manage rights database: book status, contact info
 Negotiate terms and prices of online book uses on
behalf of rights holders
 Distribute share of revenue to rights holders

9. Institutional Subscription Licensing models
 Libraries that contribute books for scanning:
 Fully participating libraries
 Give in-copyright books; get digital copies,
must meet security requirements
 Cooperating libraries
 Give in-copyright books; get no digital copies
 Libraries that do not contribute books for scanning:
 May subscribe to ISD (either whole or discipline based)
 Pricing model set by Google and Book Registry
 Benefits of partnering:
 Ability to challenge institutional pricing model
 Some subscription discounts
 Information about inclusion / exclusion of books

10. Google Research Corpus
 All Google books except in-copyright works whose
rights holders have removed their works
 Hosted at Google, up to two other sites
 Non-consumptive research:
 linguistic analysis, automated translation, book
relationships, index/search techniques
 Qualified users
 approved research agenda
 letter of support from participating library, book registry,
google, or corpus host

11. How many orphans?
One possible calculation Claimed
21%
3.5 million out of print books
scanned prior to May 2009
$45 million (rights claims)
÷ $60 per book
______________ Orphans
79%
= 750,000 claimed books,
and 2.75 million orphans Out-of-print titles
But $45 million is the minimum payment, so numbers may vary.

12. Google Book Settlement: Reactions
 Positive:
 huge corpus available to wide audience
 bypassed orphan works log jam
 Concerns:
 de facto monopoly
 user privacy
 intellectual freedom
 transparency
 equity of access
 long-term security of data

13. Copyright challenges
 Does the settlement erode statutory rights under copyright law?
 Is ‘fair use’ doctrine affected by the settlement? (NB – ‘fair use’ is
much broader than Canadian ‘fair dealing’)
 Many argue that it does not….it is a private settlement among
three parties. ‘Fair use’ legislative provisions haven’t changed.
 Many argue that it is more restrictive than ‘fair use’
 General view that the settlement will be influential in setting de
facto standards for ‘fair use’, such as number of pages that can
be displayed or printed; the conditions for archiving and indexing
of text for discovery purposes
 Contractual licensing is supplanting copyright legislation as the
driver for reproducing and disseminating in-copyright books (in a
commercial model) to our collective cultural heritage – enormous
risk for the stewardship role of libraries.

14. Copyright challenges (2)
 The Registry will not be available to the public - a key tool is
being developed privately
 The board of the Registry will have no librarian or reader
representation… will a balanced approach to copyright, access,
and pricing issues be possible?
 The settlement is silent on how agreements between libraries
and the Registry would ensure that users can exercise their
rights under the US Copyright Act
 Will have a damper effect on Open Access and Creative
Commons licensing – how will affect the long-term plans of the
Open Content Alliance, for example?

15. Pricing and market impacts
 No other provider can be offered license terms better than Google’s for ten
years – creates a virtual monopoly and enormous lead time advantage.
 Upward pressure on pricing– affordability in a limited market.
 Pricing to be determined by: the pricing of similar products & services; the
scope of books available; the quality of the scan; and features offered via
the subscription
 The settlement refers to two goals: 1)market realization of revenues for
rights holders, and 2) broad access by the public including institutions of
higher education…to be based on “comparable products and services”. But
which ones?
 Only Google can license ‘orphan works’ (in the absence of legislation)
 Opting out for orphan works would be very problematic. Creates a huge
locked-in pool of books.
 Will have huge influence on market pricing for out-of-print books.
 Rights holder can set price, or the Registry will use a pricing algorithm
based on similar books to determine price

16. Integration & curation issues
 Google has opened Book Search via APIs: libraries can embed book
images, previews, and links to Book Search within discovery layers and
catalogues
 Book Search won’t allow downloading of in-copyright books to mobile
devices.
 How can we leverage SFX link resolver to obtain maximum benefit from
enriched content in Book Search?
 Libraries can work closer with Google and OCLC to make it very easy to
move from search results to purchased content (eg ‘Find in a Library’
link)
 Could lead to better partnership arrangements with libraries for
developing finding aids and user tools
 Preservation is based on a commercial model, not on certifiable
standards in a non-profit, research environment – what guarantee of
permanence do we have? What if Google’s business model changes?

17. Integration & curation (2)
 Book Search offers a very limited form of collaboration
(eg shared annotation among small & predefined
groups) but:
 Doesn’t permit enhancements of texts;
 Doesn’t permit the layering of new services upon texts;
 Doesn’t permit use of texts in digital mash-ups.
 Compare this with dynamic developments in ebook
interfaces for searching, sharing, storing, and managing
ebook content

18. The Competition….
 The sheer size and scope of Book Search will invite comparisons with
established commercial products, such as EEBO, ECCO, and the backlists
of major publishers like Oxford or Taylor & Francis.
 How will the pricing for the Institutional Database Subscription (IDS) affect
pricing models in the academic marketplace?
 There will be much pressure on US libraries to acquire the IDS. If and when
it is available in Canada, there will be pressure on libraries to acquired it.
 How will the ebook aggregators (eg NetLibrary, ebrary) be affected? Google
has very deep pockets for R&D
 Turf wars - Google is providing public domain titles in ePub format to the
Sony ebook reader and recently announced that “it would let anyone resell
the millions of out-of-print books it has scanned from the nation’s libraries.”
 What was Amazon’s response?
 “an Amazon executive immediately rejected the idea of becoming Google’s
affiliate”

19. The Competition (2)
 Comparison of DRM systems will be important for
access to material.
 How will Google propose to integrate Book Search
into the researcher’s workflow?
 Book Search won’t be able to offer the range of
functionality and tools on Scholars Portal as a
discovery environment for researchers
 Can we deem Book Search ‘a collection’ analogous
to a library collection, eg on Scholars Portal?

20. Privacy matters
 Concerns over user privacy…will these be addressed?
 Google has an unprecedented opportunity to monitor
and track user reading habits, eg when a user prints out
pages from a book in the ISD, there will be a visible
watermark displaying encrypted session information
“which could be used to identify the authorized user that
printed the material or the access point from which the
material was printed” (art 4.1)
 “For purchases of online e-book access or access via
institutional subscriptions, Google will have the technical
ability to track every page that one views, even recording
how long is spent on a page.” (Alan Inouye, ALA)
 What will privacy look like in a Google environment?

21. Google’s response re privacy concerns
 Federal Trade Commission (consumer protection) letters and statements
 “..because the settlement agreement has not yet been approved by the court, and the
services authorized by the agreement have not been built or even designed yet, it's
not possible to draft a final privacy policy that covers details of the settlement's
anticipated services and features. Our privacy policies are usually based on detailed
review of a final product -- and on weeks, months or years of careful work engineering
the product itself to protect privacy. In this case, we've planned in advance for the
protections that will later be built, and we've described some of those in the Google
Books policy” – Jane Horvath, Global Privacy Counsel, Google
 “The Bureau [of Consumer Protection] asks Google to commit to a continuing
dialogue regarding consumer privacy policies for Google products and services…I
believe such a commitment would require Google to adhere to the concept of privacy
by design,..” – Commissioner Paula Jones Harbour
 Center for Democracy and Technology Privacy Recommendations for the Google
Book Settlement

22. Intellectual Freedom
 If qualified users want to search the Research Corpus for ‘non
consumptive’ research, e.g. textual or linguistic analysis, their research
agenda needs to be approved by the host institution
 “Research Agenda” means a document that describes a research
project in sufficient detail to demonstrate that it will be Non-
Consumptive Research” (p. 17 of Settlement)
 Host institution is responsible. What will the criteria be?
 This will certainly conflict with academic freedom…fundamental values
will be at play
 Google can exclude a book for editorial reasons: on what basis?
Pressure from governments, powerful interest groups could have an
important impact, e.g. Google saving itself from embarrassment or bad
PR by suppressing a controversial book
 The Settlement requires Google to provide public access and the ISD
for only 85% of the in-copyright, not commercially available books
(potentially 1M books)
 Censorship & freedom of expression – another conflict with library
values

23. Equity of Access
 Works within works might be excluded, depending on rights holder
exercising his rights independently, eg an essay, a poem, a chart or
a table
 The Settlement doesn’t include pictorial works, eg photographs and
illustrations will be blacked out.
 Momentum driving supply & demand :
 “…it is possible that faculty and students at institutions of higher education
will come to view the institutional subscription as an indispensable only
because research libraries have invested significant resources in preserving
out of print books.. They might insist that their institution’s library purchase
such a subscription. The institution’s administration might also insist that the
library purchase an institutional subscription so that the institution can
remain competitive with other institutions of higher education in terms of the
recruitment and retention of faculty and students.” ALA-ACRL-ARL Brief
 This can exacerbate inequalities among libraries, based on budget realities.

24. Future Business opportunities under the
settlement…
 Print on Demand
 Custom Publishing
 PDF downloads
 Consumer subscriptions
 Summaries, abstracts, compilations
 To compete, publishers will need to focus more on
metadata, rights-management and new logically
structured units (ie not pages) using a XML-based
content architecture and workflow.
 Announcement last week: Google will provide the public
domain books to On Demand Books for print-on-demand
publishing using the Espresso Book Machine.

25. Conclusion
 We need to monitor developments closely, and engage
in vigorous, balanced advocacy with our stakeholders,
and show support for US libraries & organizations that
are raising serious concerns
 What will be the future impact on our libraries?
 “Google is a behemoth, and the Google Settlement, if
approved, will make it the behemoth of the book….Will
the restraints of the Book Rights Registry be enough to
keep it from abusing such a position, or will they be like
the ropes of the Lilliputians around the sleeping Gulliver?
This story is surely only in chapter one” - Grace
Westcott, Globe & Mail Feb 20, 2009