[A2k] Pam Samuelson really good piece on the Google settlement

Manon Ress manon.ress at keionline.org
Thu Mar 24 13:46:49 PDT 2011


A Copyright Expert Who Spoke Up for Academic Authors Offers Insights
on the Google Books Ruling
Pamela Samuelson

Pamela Samuelson, a professor of law at the U. of California at
Berkeley, suggests what might be the next steps for the parties
involved in the Google Books project.

By Marc Parry

Pamela Samuelson played a lead role in voicing academic authors'
concerns over the Google Books settlement. That advocacy made an
impact: Judge Denny Chin cited her writing in his ruling rejecting
Google's deal with authors and publishers, who were represented by the
Authors Guild and the Association of American Publishers.

In an interview with The Chronicle on Wednesday, Ms. Samuelson, a
copyright expert and professor of law at the University of California
at Berkeley, shared her take on what the judge's decision means—and
where we go from here.

Q. Is this a good ruling?

A. It's the only ruling really that the judge, I think, could have
made. The settlement was so complex, and it was so far-reaching. With
the Department of Justice and the governments of France and Germany
stridently opposed to the settlement, it seems to me that the judge
really didn't have all that much choice. So the ultimate ruling, that
the settlement is not fair, reasonable, and adequate to the class, is
one that I think was inevitable.

The thing that surprised me about the opinion was that he took
seriously the issues about whether the Authors Guild and some of its
members had adequately represented the interests of all authors,
including academic authors and foreign authors. That was very
gratifying because I spent a lot of time crafting letters to the judge
saying that academic authors did have different interests. Academic
authors, on average, would prefer open access. Whereas the guild and
its members, understandably, want to do profit maximization.

Q. So did the ruling address the concerns you raised in general?

A. Yes. The adequacy of representation was one of the key points. I
also raised issues of the scope of the settlement in relation to the
issue in litigation. Many of the things that the settlement would do
are copyright reforms that I think are good. The question is, Can you
do this through a class-action settlement? One of the things that was
very pleasing to me about the judge's ruling is that the judge also
said changes this far-reaching to the default rules of copyright law
have to be done through Congress.

The settlement would grant Google about five different licenses that
ordinarily, to get that broad a license, you'd have to get it from
Congress. It's a license to scan all the books and to store them. A
license to make nondisplay uses of them for purposes such as improving
search technologies and automated translation tools. It would grant a
license for nonprofit researchers to engage in "nonconsumptive"
uses—so research uses for academic purposes. It would grant Google a
license to give "library digital copies" of the books scanned from
library collections back to those libraries and allow the libraries to
make certain kinds of uses of the works. And it would give Google a
license to commercialize all of the out-of-print books in the corpus.
It's really quite extensive.

If Congress was going to grant licenses like this, it wouldn't just
grant them to Google. Part of what the Justice Department came to
recognize is that the licenses that Google would get from the
settlement would create barriers to entry to any other firm, because
no one else could get those licenses. That's something that really fed
into the antitrust analysis in the case. The settlement would give
Google a de facto monopoly over the orphan books [unclaimed works
whose copyright owners aren't known or can't be found] that would make
a subscription service that it could offer unreachable by any
subscription service that anyone else might offer. Google could have
millions and millions of books that no one else could reach.

Q. What does the judge's ruling mean for privacy concerns raised about
Google Books?

A. He decided that the privacy objections by themselves were not a
reason to reject the settlement. The concerns that were raised about
privacy issues were nevertheless ones that he thought were very
serious. And he indicated that he hoped that any further iteration of
a settlement would deal with those issues more seriously.

The way the settlement was drafted, it called for Google to engage in
extremely extensive monitoring of access to books. Now you could say
that one of the reasons they needed to do that was because, if they're
going to pay specific authors for specific books that might be read,
let's say, in the institutional-subscription corpus, then they've got
to know whose books are being read.

But as we all know, Google basically also wants to know everything
that we look at and everything that we read, and they would be engaged
in profiling and serving up ads. There were virtually no privacy
guarantees for users in the settlement agreement. Efforts to persuade
Google to adopt a set of principles were only partially successful,
and then they were only willing to say, 'Well, OK, we'll sort of agree
to do this.' But they weren't willing to do anything that would bind

One of the things the judge noted is these are things they could adopt
for a while and then abandon. Libraries have been very, very careful
over time about protecting the privacy interests of their user base.
And Google was not willing to make commitments to essentially
accomplish an equivalent level of protection. When we're talking about
a corpus of books that millions of people in the U.S. would be using,
not to have any serious privacy commitments here really was

Q. What does the ruling mean for academic authors?

A. There are a couple of paths that can happen from now going forward.
One path is that academic authors can communicate with Google about
their interest in making their books available on an open-access
basis. That would be something that would allow more of their books to
be more widely available.

Second, I'm planning to be working with a group of academics to try to
put together a legislative package that would accomplish some of the
positive goals that the Google Books settlement raises as
possibilities. Much greater access to out-of-print books: I think that
goal is really commendable.

A third possibility is that, if this matter goes into litigation, I
think academic authors will probably offer support to Google in its
fair-use defense, because we are the kind of people who think that if
you scan my book in order to index it and make little snippets
available, that's actually a good thing. That's going to promote more
access to my books, and that's what I want as an academic.

Q. What do you think of the prospects for legislative change?

A. It would require a lot of energy, and a lot of coalition building.
But I think that there's some possibility of it, actually. I'm not
wildly optimistic about it. There is this amazing vision of access to
knowledge that a lot of people are in favor of. If that's true, then
we ought to be able to come up with something that would make it all

All of the major parties have been in favor of orphan-works
legislation. Because of the settlement, for the last two and a half
years, that legislation has been on hold. Right now, if a book is an
orphan, or you think it's an orphan, you can't make it available to
anybody because the copyright owner could come out of the woodwork,
and then you could get sued, and statutory damages would be awarded
against you, and that would be bad.

The legislation that Congress has been considering, and that the
Copyright Office recommended, was that once you make a reasonably
diligent effort to locate a copyright owner, then you should be able
to use the work if your diligent effort doesn't find that copyright
owner. So go ahead and use the work, and make free use of it actually,
and if the copyright owner shows up later, then maybe you have to take
it down. But statutory damages and other remedies that otherwise would
ordinarily apply, would not apply.

I have some tweaking that I want to do to that particular approach,
but nevertheless it seems to me that that's more consistent with the
utilitarian principles of copyright law than the settlement approach,
which would have charged profit-maximizing prices for orphan books
through the end of their copyright term, even though there's no
copyright owner out there who actually deserves and needs the
compensation that Google would be providing.

Q. Who might lead the coalition to push for legislative change?

A. Obviously Google will have an interest in thinking about this. The
AAP [Association of American Publishers] and the Authors Guild were in
support of orphan-works legislation. Most of the technology companies
were in favor of it. Libraries and academics were in favor of it. It's
just that it was taking awhile, so Google just said, "Hey, we'll solve
the orphan-works problem ourselves."

Q. Could there be a meaningful settlement under the "opt-in" model
described by the judge? He said many concerns would be resolved if the
settlement made rights-holders opt in, by asking to have their works
included in the Google Books project, rather than forcing them to opt

A. It's hard to say, because trying to read the tea leaves about what
the details would be is very difficult at this point. From the
standpoint of the objections of most of the authors—not necessarily
academic authors, but other authors—an opt-in regime is actually
respectful of copyright. But it doesn't solve the orphan-works
problem. All the orphans would be out of the settlement. Then if you
want to make it available, you've got to come up with a fair-use

Let's say a library makes a reasonably diligent search for the
copyright owners of certain books, and they can't find the copyright
owners to get a rights clearance. I can make an argument that making
orphan books available for nonprofit educational purposes, after you
have reason to believe it's an orphan, is fair use. So while I think
it would be better to do this through legislation, I'm not willing to
give up on the idea that within the existing framework, there's a way
to at least address some of the orphan-work problems.

Q. What about all the research that had been planned for Google Books?

A. That's one of those details that's very important in terms of any
revised settlement. The question that the judge didn't address is
whether it would need to be an opt-in regime for everything, or only
an opt-in regime for the commercialization [which refers to selling
ads against the books, selling the books themselves, and putting
together an institutional subscription to the corpus]. There are five

Suppose that Google said, "I'm willing to make it an opt-in regime for
the commercialization of the out-of-print books, but I want to be able
to scan the books, I want to be able to make nondisplay uses of them,
I want to be able to authorize nonconsumptive research, and I want to
be able to make library digital copies available to my library
partners without any compensation to the rights-holders." So, as to
that, it's an opt-out regime; as to commercialization, it's an opt-in

Q. What happens next?

A. They've got two options. One is to go back to litigation. The other
is to come up with a new settlement. Now the statements that the
publishers and the Authors Guild made are very clear that they want to
actually reach another settlement. And the judge is encouraging
another settlement.

Whether Google will be willing to settle on different terms is a
question that's quite open right now. Before the judge, in February of
last year, Google's chief lawyer basically said that this opt-in deal,
which the Justice Department was urging, was not acceptable to them,
that unless it was an opt-out regime—that is to say that they get to
commercialize the books unless the author shows up and says, "Don't do
this"—they weren't willing to settle the case. Now that may have been
something that they've been willing to say before the judge because
they want the judge to feel like he's got to approve it. But they
might actually change their mind.

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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