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Harvard steps back and other Google settlement news

November 6, 2008 | 10:41 am

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Reactions are surfacing to last week's agreement among Google, publishers and authors, and Harvard has weighed in with a big No Thanks. Harvard University will not allow its in-copyright books to be scanned under the program. The Chronicle of Higher Education quotes a letter from Harvard University Library Director Robert C. Darnton:

As we understand it, the settlement contains too many potential limitations on access to and use of the books by members of the higher-education community and by patrons of public libraries.... The settlement provides no assurance that the prices charged for access will be reasonable, especially since the subscription services will have no real competitors [and] the scope of access to the digitized books is in various ways both limited and uncertain.

If these concerns are addressed, Harvard might change its position. In the meantime, it will continue to allow Google to scan out-of-print books from its collection, as it has since 2004.

Though Lawrence Lessig calls the settlement a "good deal," which "could be the basis for something really fantastic," he has a few concerns. The main one is about the types of licenses that might be covered by the new book rights registry -- he'd like them to be diverse and inclusive.

The hard question for the registry is how far they will go to support the range of business models that authors and publishers might have. E.g., Yale Press "Books Unbound" and Bloomsbury Academic both have Creative Commons licensed authors. Will the registry enable that fact to be recognized? Indeed, though the comment was made by someone from the plaintiffs' side that it would be "perverse" for authors to choose free licensing, it is perfectly plausible that an author would choose to make his or her work available freely electronically, but contract with one commercial publisher to deal with selling the physical book, or licensing rights commercially. That, again, is the Bloomsbury Academic business model. Ideally, this non-profit should encourage the widest range of rights-respecting business models.

Lessig also notes that "orphan" works present a particularly thorny set of issues. Orphan works have no known copyright holder -- sometimes this is as simple as a missing or deceased heir, but it might be that rights were assigned to an entity that went out of business or that was swallowed up by other entities without a clear transfer of rights in the process, or some other knotty problem. Georgia Harper, the visiting scholar at the Center for Intellectual Property at the University of Maryland, focuses on what might happen to orphan works.

Further, Google clearly understood and accepted that this plan was based on an idea I found repugnant: if orphan works don't have owners, by definition, then why is it that the Registry should keep the money that comes in for books that ultimately no one claims? The publishers and authors just don't see orphans as really belonging to everyone in the absence of an owner. They see them as belonging to all the other authors and publishers, but not the public. That really rubbed me the wrong way. After all, it's not the publishers and authors who have collected these books, maintained them, preserved them, and are now making it POSSIBLE for anyone to even have potential to find them and buy them by partnering with Google to make them a part of Book Search. Where do they get off claiming that they are entitled to keep unearned, undeserved revenues to the exclusion of everyone else in the world?

I think she makes a compelling case. In some ways, the establishment of a new book rights registry might help prevent works from becoming orphans in the future -- keeping track of works and their copyright status in a centralized database -- but this centralization may become a problem itself. On the call announcing the settlement, one of the principles referred to the registry as being "like ASCAP," the nonprofit music copyright organization. But ASCAP is a problematic model, as author Siva Vaidhyanathan points out in his admittedly biased blog/book in progress, the Googlization of Everything.

Isn't this a tremendous antitrust problem? Google has essentially set up a huge compulsory licensing system without the legislation that usually makes such systems work. One of the reasons it took a statutory move to create compulsory licensing for musical compositions was that Congress had to explicitly declare such a consortium and the organizations that run it (ASCAP, BMI) exempt from antitrust laws.

Can publishers, authors and Google convince Congress that the new book rights registry won't violate antitrust laws? As Lessig points out, the agreement commits to making "public data about copyright registration, terms, etc." available to anyone -- "nonexclusively available," he writes -- which might be enough to get them off the anti-trust hook.

What's interesting -- to me, at least -- is that this agreement will affect, in so many ways, how we access information and knowledge. And what that means for books -- these bound things on my shelves -- seems to be in a state of flux.

-- Carolyn Kellogg

Photo: book digitization sign at the University of Michigan. Credit: tvol via Flickr.

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