Copyright and licensing

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Libraries have a longstanding commitment to providing open access to all, including access to government information. Libraries are champions of copyright law that makes more information broadly available to the public. Copyright has increasingly come under attack in a struggle with corporate interests and the development of vast data bases. As a result, the ALA and libraries have emerged as national advocates for copyright laws to allow the public access to fair use provisions in the Constitution.


Google Book Search project of concern to librarians (and many others)

Just about everyone who reads books, publishes them, sells them, or uses them for research has some reservation about Google’s Book Search project—and librarians certainly are no exception. Research librarians in particular are concerned about the project’s privacy implications and whether it will guarantee continued access to research works.

In a letter to Judge Denny Chin of the Federal District Court for the Southern District of New York, who is overseeing the proposed settlement of a class-action lawsuit filed against Google by groups representing authors and publishers, the ALA, the Association of College and Research Libraries (ACRL, an ALA division), and the Association of Research Libraries actively sought to have the voices of their members heard (see below).

The organizations make it clear that they don’t oppose the settlement, saying it “has the potential to provide unprecedented public access to a digital library containing millions of books,” which is consistent with libraries’ core mission. But Corey Williams, associate director of the ALA’s Office of Government Relations, told that the group is as much concerned with what’s not in the settlement as with what is. Two areas that the agreement is largely silent on are traditional concerns of libraries, namely public access to information and user privacy.

These issues and many others were to have been settled in February 2010 after years of controversy and lawsuits, but the long-awaited “fairness hearing” on a proposed settlement of the long-running lawsuits opened with Judge Chin announcing that he would not rule immediately because there was “just too much to digest.”

At the hearing, Judge Chin heard more than four hours of testimony from a few supporters of the deal and a parade of objectors. Supporters said it would make millions of hard-to-find books available to a vast audience. Opponents cited various concerns relating to competition, privacy, abuse of the class-action process, and the violation of copyright, the New York Times reported.

William F. Cavanaugh, a deputy assistant attorney general with the Justice Department, reiterated legal objections to the agreement the department had made Feb. 4 and said the department was continuing its antitrust investigation into the settlement. The department “applauds the benefits of mass digitization,” Mr. Cavanaugh said but “our concern is that this is not the appropriate vehicle to achieve these objectives.”

The settlement, originally announced in October 2008, arose out of a copyright infringement suit brought by the Authors Guild and the Association of American Publishers against Google, which had been scanning millions of books from libraries. The complex agreement outlined a plan that would allow Google to make the scanned books available on line for searching, as well as create new ways for authors and publishers to earn money from digital editions of works that had long been off the market in print form.

A long, winding path to the present (and future)—The Feb. 18 hearing was to have been the culmination of a case that had worked its way through courts of law and the courts of public opinion since 2002, when Google conceived its “secret books project.” By 2009, seemingly every organization in the world that has anything to do with books had checked in on Google’s plan to digitize and make generally available every book—famous or not, in any language, published anywhere on Earth—found in the world’s libraries.

In 2004, Google began teaming up with some of the great library collections in the world—the New York Public Library, the University of Michigan, Harvard, and Stanford, among others—to digitize their collections, with Google paying the scanning costs. Google expects to scan 15 million books from those collections over the next decade.

Authors and publishers filed a class-action lawsuit that challenged the legality of the scanning project. In late spring 2009, four years of legal maneuvering among publishers, authors, and Google seemed about to end with the approval of a visionary class action settlement. But just one week from a key May 5 deadline, by which authors and rights holders opposed to the settlement agreed to the year before would have been required to opt out of or object to the deal—the federal judge overseeing the approval process surprised court watchers by granting a four-month extension, asked for by a group of authors led by Gail Knight Steinbeck.

Under an agreement reached in October 2008, Google would pay $125 million and create the framework for a new system that will channel payments from book sales, advertising revenue, and other fees to authors and publishers, with Google taking a cut.

The $125 million will also help find the copyright holders for so-called “orphan works,” out-of-print books that are still fall under the law. These copyright holders, who are considered part of the group, or class, that settled with Google, are hard to find, since many never expected their works ever to be in print again. It is the resurrection of these works that many consider among the greatest benefits of Google Book Search.

The proposed settlement attracted opposition from various denizens of the book world, including European publishers. In April 2009, the Justice Department began an inquiry into the antitrust implications of the Google settlement, and Judge Chin granted authors worldwide until Sept. 4 to decide whether to join the settlement or opt out. In August 2009, nonprofit groups, individuals, and library associations formed a coalition called the Open Book Alliance to oppose the proposed class-action settlement, which was awaiting court approval. Tentatively called the Open Book Alliance, it includes nonprofit groups, individuals and library associations. The coalition is led by Gary L. Reback, an antitrust lawyer in Silicon Valley, and the Internet Archive, a non-profit group that has been critical of the settlement.

On the other side of the issue, a coalition of civil-rights and disability groups in favor of the project held a press conference in September to marshal support for improving access to knowledge, which they see as a key benefit of Google’s deal with authors and publishers to create a new kind of digital library. According to CNET News, they said they fear that a once-in-a-lifetime opportunity to gain digital access to knowledge previously stored in libraries at expensive universities or rich communities could be hampered by the opposition to the settlement from some authors and privacy advocates.

Testifying before the House Judiciary Committee a week later, Register of Copyrights Marybeth Peters raised strong objections to the proposed settlement of lawsuits challenging Google’s Book Search project. Calling parts of the settlement “fundamentally at odds with the law,” she warned the deal could undermine Congress’s ability to govern copyrights and could have “serious international implications” for books published outside the United States.

On Sept. 18, 2009, the Justice Department said the proposed legal settlement between Google and book authors and publishers should not be approved by the court without modifications. That led to the revised proposed settlement of Nov. 13, 2009.

“This deal has enormous, far-reaching anticompetitive consequences that people are just beginning to wake up to,” said a coalition leader, Gary L. Reback, an antitrust lawyer in Silicon Valley. The coalition continued its active resistance to Google Book Search into 2010, in both the United States and Europe.

Revised version of proposed settlement filed—The case reached a climax of sorts just before a midnight deadline on Nov. 13, 2009, when Google, the Authors Guild, and the Association of American Publishers filed a revised version of their proposed settlement in the copyright infringement litigation challenging Google’s Book Search project. The original deal, reached in October 2008, had drawn criticism over antitrust concerns and treatment of orphan works and foreign publications, and a Sept. 18 filing by the Justice Department prompted the parties to modify it.

In response to concerns from foreign rightsholders, the amended settlement limits the agreement to books that were either registered with the U.S. Copyright Office or published in the United Kingdom, Australia, or Canada. It also addresses the treatment of orphan works, directing that a portion of the revenue generated from unclaimed works be used to find rightsholders and calling for the appointment of an independent fiduciary who would be responsible for decisions regarding orphan works. It also allows for Creative Commons licensing, permitting rightsholders to let their works be distributed at no cost.

The amended agreement permits Google to increase the number of terminals that can be used at public libraries to access the database of books; previously, only one terminal per library building was allowed. In a statement, the parties noted that the changes, made after a reviewing of submissions filed with the court overseeing the deal, including the one from the Justice Department, “were developed to address many of these concerns, while preserving the core benefits of the agreement.”

The removal of foreign books was the most significant change to the agreement made in the Nov. 13 revision of the settlement. The Wall Street Journal estimated Nov. 16 that the elimination of millions of foreign titles would reduce the number of works covered by the settlement by at least half.

Critics maintained that the revisions failed to address antitrust and privacy concerns. Peter Brantley, co-chair of the Open Book Alliance, said, “None of the proposed changes [appears] to address the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest,” adding that Google, the publishers’ group, and the Authors Guild “are attempting to distract people from their continued efforts to establish a monopoly over digital content access and distribution; usurp Congress’s role in setting copyright policy; lock writers into their unsought registry, stripping them of their individual contract rights; put library budgets and patron privacy at risk; and establish a dangerous precedent by abusing the class action process.”

A few days later, Brantley asked rhetorically, “Do we really want the card catalog of the future running advertising?”

Other groups have similar problems with the revised settlement. National Writers’ Union President Larry Goldbetter, for example, said it “fails to address the concerns of several writers’ organizations and many American writers, and allows Google to get away with violating writers’ constitutionally protected rights.”

Library groups seek ongoing judicial oversight— In amicus curiae filings, the ALA, the ACRL, and the Association of Research Libraries asked the court to exercise vigorous oversight of the interpretation and implementation of the settlement to ensure the broadest possible benefit from the services the settlement enables. They called on the court to address concerns with pricing review, to direct Google to provide more detail on privacy issues, and to broaden representation on the Books Rights Registry.

In addition to communicating with the court, the associations sent letters in July 2009 and again in September to the U.S. Department of Justice asking for ongoing judicial oversight of the Google Book Search settlement, if it is approved. The associations urged the DOJ to request the court to review the pricing of the institutional subscriptions to ensure that the economic objectives set forth in the settlement agreement are met. Libraries, as the potential primary customers of institutional subscriptions, expressed concern that the absence of competition could result in profit-maximizing pricing.

The associations also expressed disappointment with the DOJ’s failure to urge the parties to the settlement to require representation of academic authors on the Book Rights Registry board. As the groups explained, academic authors wrote the vast majority of the books Google will include in its database. Without representation of academic authors, the Books Rights Registry may establish a pricing model that maximizes profit rather than public access to academic works.

Finally, what Richard Andrew Albanase wrote in Publishers Weekly way back in May 2009 probably still holds true:

The solution to what began in 2005 as a simple copyright question is now a complex blueprint for an entirely new digital book business, a $125 million legal puzzle that involves a dizzying array of moving parts: thousands of authors, millions of titles and editions, libraries, public interest issues, murky copyright law, orphan works and even the creation of a new, central rights-granting authority in the U.S., the Book Rights Registry. One notable thing the settlement doesn’t do, however, is address the original claim in the suits—whether Google’s scanning of library books to create an online index is legal.

Still perplexed? Guides to the revised Google books settlement —The ALA, the ACRL, and the Association of Research Libraries have responded to the proposed settlement of lawsuits challenging Google’s Book Search project with guides describing the major revisions, particularly those relevant to libraries. The Google Books Settlement: Who Is Filing And What Are They Saying?  (1.33 MB PDF) summarizes in a few pages of charts some key information about the hundreds of filings that have been submitted to the federal district court presiding over the Google Books litigation. See also A Guide for the Perplexed Part III: The Amended Settlement Agreement (1.8 MB PDF), written by legal consultant Jonathan Band.

Most recently, the associations released GBS March Madness: Paths Forward for the Google Books Settlement  (1.2 MB PDF). This diagram explores the many possible routes and outcomes of the Google Books Settlement, including avenues into the litigation and appeals process. Judge Chin’s decision in the fairness hearing is only the next step in a very complex legal proceeding that could take a dozen more turns before reaching resolution.

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Highlights from the e-book wars

Amazon may have established the first beachhead in the battle of the e-books with its Kindle, way back in 1997, but it has of late found itself embroiled in skirmishes on many fronts. What follows is not a History of the E-book Wars but merely few highlights (or lowlights, depending on your point of view) from the past year or so:

  • Introducing Kindle 2—Amazon released version 2 of its Kindle e-book reader in February to fanfare over improvements over the previous model and controversy over a feature that converts text to spoken words. Three days later, it reined in the conversion feature by enabling publishers to opt out of the application. Protest of the text-to-speech feature came from the 9,000-member Authors Guild, among others, and Amazon announced that it would allow publishers to disable the feature on a title-by-title basis.
  • Not so fast—The Reading Rights Coalition and the National Federation for the Blind, advocates for readers with print disabilities, protested outside the Authors Guild’s New York offices April 7 that the guild’s objections to the Kindle text-to-speech feature of Amazon’s Kindle 2 e-book reader disenfranchises people who have difficulty reading.
  • Google jumps in—In May, Google indicated that it would introduce a program that would enable publishers to sell digital versions of their newest books direct to consumers through—you guessed it—Google. Already on Google, users can search up to about 20 percent of the content of many books and can follow links from Google to online retailers to buy either hard-copy or electronic versions. Google’s e-book retail program is separate from the Google Book Search project (see article in this section), but Google has already made more than 1.5 million public-domain books available for reading on mobile phones as well as the Sony Reader, the Kindle’s largest competitor. Under the new program, publishers give Google digital files of new and other in-print books; publishers can set a suggested retail price, but Google will set the ultimate consumer price.
  • University sued—The National Federation of the Blind and the American Council of the Blind filed suit June 25 against Arizona State University to prevent it from deploying Amazon’s Kindle DX e-reader to distribute electronic textbooks to its students because the device cannot be used by blind students. Darrell Shandrow, a blind ASU student, was also a named plaintiff in the action. Although the Kindle features text-to-speech technology that can read textbooks aloud, its menus are not accessible, making it impossible for a blind user to use the advanced reading functions. Dr. Marc Maurer, President of the National Federation of the Blind, said: “Given the highly-advanced technology involved, there is no good reason that Amazon’s Kindle DX device should be inaccessible to blind students.” 
  • Other changes sought—The Boston-based Free Software Foundation urged Amazon to give up control over the books people load on their Kindles and to reconsider its use of digital-rights-management software, according to the New York Times (July 26); and civil libertarians and consumer advocates want Amazon to fundamentally alter its method for selling Kindles, lest it be forced one day by court order to change or recall books, or by a government deciding that a particular work is politically damaging or embarrassing.
  • Sony lowers prices—Sony Electronics announced in August that it was lowering prices for new and bestselling books in its e-book store from $11.99 to a flat-price $9.99. which matches that of for its Kindle e-books. A few weeks later, Sony also introduced two new electronic reading devices—the Reader Pocket Edition and Reader Touch Edition, which sell for $199 and $299 respectively.
  • Amazon ate my homework!—Writing in TechFlash Sept. 30, Eric Engleman told the tale of a Michigan high school student, Justin Gawronski, who was so incensed when Amazon remotely deleted copies of George Orwell’s 1984 and Animal Farm from people’s Kindles that he sued the online retailer. Gawronski alleged that Amazon essentially ate his homework when it removed his copy of 1984 and caused his ‘copious notes’ to disappear. Amazon settled the lawsuit for $150,000. (Gawronski was far from the only one who was unhappy at the deletions; Amazon CEO Jeffrey Bezos issued a general apology, and the company offered to deliver new copies of 1984 and Animal Farm at no charge to affected customers.)
  • Publisher wins a round In late January this year, Amazon removed direct access to thousands of e-book and hard-copy titles published by Macmillan, which had said it planned to begin setting higher consumer prices for e-books. Customers who wanted to buy print editions could do so only from third-party sellers, and Kindle options disappeared altogether. But two days later, Amazon surrendered, if only grudgingly. “We have expressed our strong disagreement and the seriousness of our disagreement by temporarily ceasing the sale of all Macmillan titles,” Amazon said. “We want you to know that ultimately, however, we will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.”

The effect of e-books on libraries is only starting to come into focus. In fact, a website called (“How to Do Just About Everything”) suggests that this would be a good topic for a library science thesis. And Library 2.0 Gang, a group hosted by Richard Wallis on ALA TechSource, discussed e-books and e-readers in August 2009. As summarized by Wallis: “There was some disagreement on timing, but all were clear as to size of revolution that readily available eBooks in open formats, on devices that add value to the reading experience, will have on libraries over the next few years. It may not be too long before the roles, of normal format and special request technical novelty, of the book and the eBook, are reversed.”

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University of Michigan finds new partners—in book sales

The University of Michigan will make thousands of books that are no longer in copyright available as reprints on demand under an agreement with BookSurge, an company. As individual copies are sold, BookSurge will print and bind the books in softcover. Maria Bonn, director of the UM Library’s scholarly publishing office, said the reprint program includes books digitized both by the university and through its partnership with Google. The initial offering on Amazon will include more than 400,000 titles in more than 200 languages.

And in another twist on the Google Books idea, Hewlett-Packard announced a partnership with the UM Library to sell physical copies of over 500,000 rare and out-of-print works, while making the digital versions available on line for free. HP’s BookPrep service will take in raw scans of books, clean them up to prepare them for reprinting, and then offer print-on-demand copies for sale via normal online book distribution channels such as Amazon.



Copyright Office needs a journeyman sorcerer

A logjam of applications in the U.S. Copyright Office at the Library of Congress has created a mountain of paper applications, more than the staff can process, the Washington Post reported May 19, 2009. “Like the marching buckets of water in The Sorcerer’s Apprentice, the envelopes just keep coming, threatening to flood the operation,” according to Staff Writer Lyndsey Layton. The problem has tripled the processing time for a copyright from six to 18 months, and delays are expected to get worse. The library’s inspector general has warned that the backlog threatens the integrity of the U.S. copyright system.

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