If you care about the future of books, you need to understand the Google Book Settlement. It's a complicated legal document, but we've talked to some of its architects, detractors, and defenders - and break it all down for you.
The Google Book Settlement could easily be the twenty-first century's most important shift in how we deal with copyright in the world of publishing. To understand it, you need a little back story on the previous giant shift in copyright law, which happened about twelve years ago.
Mickey Mouse Protection Act
In 1998, copyright was turned on its head by a piece of legislation often called the "Mickey Mouse Protection Act." Known to policy-makers as the Copyright Extension Act, it was the result of intensive lobbying by the entertainment industry, led in part by Disney, to extend the copyright on any work created after 1923. Many of Disney's classic pieces of content, like Mickey Mouse cartoons, were about to pass into the public domain. So the company was naturally interested in keeping control of the Mouse as long as it could.
The Copyright Term Extension Act was good for authors' estates, and for corporations. Under the new rules, copyright would become life of the author plus 70 years - and for works of corporate authorship, 120 years after creation. (Previously, copyright had been life of the author plus 50 years, with 75 years for corporate works.)
The Act also gave birth to a loosely-organized but powerful movement of copyright reformists. Led by activists, scientists, artists, and tech nerds, this movement has stretched from university campuses to the Supreme Court of the United States, where law professor Lawrence Lessig argued that the Copyright Extension Act was unconstitutional because it violated the First Amendment (SCOTUS didn't buy it). Over the past decade, many of these reformists migrated to jobs in Silicon Valley, where easily-copied digital media are constantly forcing the question of what copyright really means in the information age.
One might say that the Google Book Settlement (GBS) is the result of this migration. One of the basic injunctions of copyright reform is "share your culture," and the seeds of the GBS come from an admirable Google project aimed at sharing the knowledge from research libraries with the world.
Many years ago the search company began digitizing the books from several university libraries, pulling every single book from the shelves and making a digital copy. The idea was to make hard-to-access texts available to anyone, not just people lucky enough to live near a major research school. Via Google Book Search, people would be able to search for keywords in the full text of any book, then read one or two-sentence "snippet" excerpts from it. The Mickey Mouse Protection Act may have stalled the growth of the public domain, but the company's Google Book Search project would broaden it.
The Settlement
The Google Book Search project was conceived as an online library, its texts fully searchable, and open to all. Unfortunately, when you digitize everything in a library, a lot of books are swept up in the frenzy. Among the rare and out-of-print works Google digitized were millions of copyrighted works. When publishers and authors of those works got wind of Google's project, some of them sued for infringement. They didn't want any parts of their books available online for free - they wanted people to pay for them.
Sued by the Author's Guild and representatives of the Association of American Publishers, Google decided to settle out of court. And this produced the first Google Book Settlement in 2008, out of which Google Books was born. Google Books was a much expanded vision from Google Book Search, and with some exceptions it gave the company a retroactive license to digitize any book registered in the United States before 2009, and any book published before 2009 in the UK, Australia, and Canada. Yes, you read that right. In exchange for hundreds of millions of dollars in settlement money, Google can now digitize pretty much any book published in the English-speaking world before 2009. Due to various complaints, a new version of the GBS was produced in 2009 (often called GBS 2.0), and that version adds a lot of interesting kinks to the situation. That's the version I'll be talking about here.
It's crucial to note that the GBS 2.0 has not yet been approved, and is currently being evaluated for fairness by a Manhattan judge after a lengthy hearing in February. It could to be revised again in light of that hearing, especially because the Justice Department strongly objected to parts of GBS 2.0.
That said, the GBS will ultimately "turn copyright on its head," as critics like Ursula Le Guin have said. And that will change the way you find and read books. Here's how.
1. It may become harder to get information online about books from writers you love.
Authors from Ursula Le Guin to Michael Chabon have spoken out against the Google Book Settlement, decrying the way it seems to wrest control of books away from authors. Both LeGuin and Chabon, along with thousands of other published authors (you can view a complete list here [PDF]), opted out of the GBS. Authors who opted out of the GBS don't want their work included in that mega-group of "all works published in the U.S." that Google has retroactively licensed. In short, they don't want to be part of Google's digital library. But why?
Le Guin told io9 via e-mail:
Google is digitizing copyrighted books without getting, or even seeking, permission from the copyright holders. How they persuaded several great libraries to allow them to do this is a question that needs answering, as libraries have always been careful about seeing that library users observe copyright law. If we go on doing it [Google's] way, we end up with a wholly-owned list of digitized books, many stolen from their owners, totally controlled, managed, opened and closed to public use, by a profit-making corporation interested in furthering its monopolistic control of information.
Like many other authors, LeGuin does not interpret the GBS as a blow struck for copyright reform. She wants to control who digitizes her books, and how they do it.
In the short term, opting out of the GBS won't affect most writers very much. But in the long term, as more people access books online, it's possible that LeGuin's books will become increasingly hard for people to learn about. You will be able to buy them online, and access plot summaries. But, unless LeGuin gives another company permission to do what she's forbidden Google, nobody will be able to "leaf through" her books virtually, the way you might in a bookstore.
Ironically, many of LeGuin's books are still available via Google Books. If you search for them, as of this writing, you'll find what Google calls a "snippet view" of the books in search results.
There's a reason for this. LeGuin's opt-out does not prevent Google from digitizing her books, or from showing snippets of them online. It just gives her the right to sue Google for copyright infringement (if you don't opt out, you can't sue because you've settled out of court). Ironically, the only way LeGuin could prevent Google from displaying her books would be to opt into the GBS, and then request that Google not display her books at all. And here's the irony icing on the irony cake: Let's say LeGuin did opt in to the GBS, because she wanted her books to be available for people to sample. If she did that, her publisher's agreement with Google Books could override her wishes and keep her book unsearchable or only available in snippet view (for a full, complicated account of this, see GBS Attachment A).
This is where many of the author protests of the GBS fall apart. All publishers in the Association of American Publishers, including LeGuin's, have agreed by proxy to the GBS. Roughly 30 thousand publishers in 100 countries have made deals with Google Books. Generally, most publishing rights for in-print books are owned by publishers, not authors. That means publishers may control how books are accessed via Google Books, whether the authors like it or not.
If authors like LeGuin really want to opt out of the GBS, she and her fellow in-print authors will ultimately have to take it up with their publishers and contract lawyers rather than Google. Given how strongly these authors feel about the GBS, you may find that many of your favorite writers will start refusing to do business with their publishers. Or they may refuse to sign contracts that give their publishers the right to distribute their work online. This would obviously cut down even more on your ability to find the books you love in digital format.
2. You will find yourself reading free books online, by authors who have disappeared. And Google will make money when you do.
It may become harder to find books by your favorite authors, but you'll also have access to many more books than you ever knew existed.
Out of the roughly 12 million books that Google has digitized, 2 million are in the public domain. That means they were published before 1923, and have fallen out of copyright. But some are more recent books that have fallen through the cracks of the publishing world: There are at least a million of these books, called "orphan works." That means they're still under copyright, but they are out of print and nobody knows where the authors are. Many of those books are science fiction and fantasy novels that were in print for just a few short years. Now you can read large parts of those books for free - and for a subscription fee you can read them all.
Why can you access big chunks of copyrighted books for free? Google's default mode for digitized books is what's called a "partial view" that makes a random 20 percent of each book available for free, or full text for a fee, unless a copyright holder has specifically requested otherwise. Because orphan works' authors can't be found, Google uses the default mode.
Google isn't adopting all those orphans out of the goodness of its heart. The GBS gives Google the right to sell them. As soon as the GBS is approved, the company can immediately begin selling about 5 million copyrighted books.
How can that be? Google estimates that there are about 5 million copyrighted but out-of-print books in its library. Of these so-called "unclaimed" books, a million are estimated to be true orphan works. The other 4 million are books whose authors could be found. But Google didn't attempt to track down the authors because - let's be fair - it's really hard to find the authors of 5 million books. So they are relying on copyright holders to contact the company, claim their books, and let Google know what to do with them.
Let's say I'm an author who published a dozen science fiction books in the 1950s about lesbian aliens which quickly went out of print, but were digitized by Google last year. Right now, my entire "Journey To My Tentacle Cave" series is available with free partial view online, plus Google is also selling the full text versions, and I'm not thrilled about that. How do I contact Google and let them know that these are not unclaimed works, and that I want to control how people read them online?
First, I can go to Google Books and claim my books via this form. Once I've done that, I become eligible for a $60 licensing fee Google has agreed to pay authors in the GBS (oh boy). Then I have several options: I can continue making the default "partial view" available; I can opt for the "snippet view" we saw with LeGuin's book above; I can opt for no view at all (book is totally unsearchable); I can opt to completely delete the book from Google's servers (the "remove" option); and I can opt to let Google sell my book via a proposed partnership plan.
All of this sounds great, but there's a problem. Many authors may not realize that Google has digitized their books, so they won't be able to contact the company to remove them. Others may discover their books online, but know nothing about the GBS and therefore be unable to find that form to fill out. And even when authors do know about the form, they may find the whole process slow and frustrating.
What they will find most frustrating is the fact that even though they are only getting $60 per book out of the deal, Google will be making money forever by showing ads next to their books when people read them online. Which brings me to my next point.
3. Google will be competing with Apple and Amazon and everybody else to be your favorite online bookseller.
One of the weird things that the GBS does is create an industry organization - completely separate from Google - called the Book Rights Registry (let's call it the Registry). The Registry's main job will be to mediate between authors and Google. But it will eventually turn into a license-management organization that authors can use to license their books to anyone who wants to make electronic copies.
So let's say our imaginary author of the "Journey To My Tentacle Cave" series decides she wants to sell her books online. She goes to the Registry and says, "Hey, Google has already made digital copies of my books and I want to sell them through Google." The Registry says, great. That's because they already have an agreement with Google to get 63% of all revenues made from the Google Books library. The Registry can choose how it wants to pay the author of the "Journey To My Tentacle Cave" series - it could pass along the full 63% to her (unlikely) or a portion of it, minus the Registry's fees. So now our author just sits back and waits for the Registry to pay her based on what Google sells.
Here's the cool part. Our author can also use the Registry to sell licenses to other booksellers too. Maybe alien lesbian books make a huge comeback and suddenly our author becomes internet famous. Now Apple's iBook store and Amazon want to sell her long-out-of-print books too. Our author says, great - go to the Registry and you can license the rights from them. Then Amazon and iBook can make their own digital copies and start selling them too. And our author sits back and makes more cash. (For music geeks: Yes, the Registry would be something like ASCAP and BMI are for the music industry.)
Our bard of alien lesbian epics is obviously in an ideal situation, which depends on many factors - not the least of which is a judge approving the fairness of GBS 2.0. Also we're depending on the fair-mindedness of the board of this not-yet-created organization, the Registry, which will consist of people drawn from the leadership of the Author's Guild and the American Association of Publishers (the original plaintiffs in the suits that created the GBS).
Before the Google Books Store launches, this board will have a lot of work to do. First, its job will be to allocate $45 million that Google owes to all the authors whose books it digitized without permission (remember: authors who claim their books get $60 per book). Then, its job will be to manage all the cash that Google is spraying at it: They've got to figure out what to do with that 63% of revenues from Google Books - which comes (mostly) from Google AdSense as well as book sales of lesbian alien novels. Some of the money goes to authors, but what about the money from all those unclaimed works? The BRR holds that money for 5 years, then will use a portion of it to track down the author in an effort to pay them. After 10 years, they may give the money to nonprofits.
On top of all that stuff, the Registry's job will be to mediate between authors and booksellers.
And then there is the little matter of how much control the Registry will have over books whose authors are no longer around to give an opinion. Law professor Pam Samuelson, who has argued tirelessly for copyright reforms, is extremely pessimistic about this aspect of the Registry. She wrote last year:
Copyright maximalists will almost certain dominate the BRR governing board . . . The Authors Guild president, for example, recently complained about the "read aloud" feature of Kindle, denoting it a "swindle," and a copyright infringement. The AAP is supporting legislation to forbid the National Institutes of Health from promoting "open access" policies for articles written under NIH grants. And of course, the Authors Guild and AAP characterized Google as a thief for scanning books from research libraries.
If asked, the authors of orphan books in major research libraries might well prefer for their books to be available under [reformist] Creative Commons licenses or put in the public domain so that fellow researchers could have greater access to them. The BRR will have an institutional bias against encouraging this or considering what terms of access most authors of books in the corpus would want.
Her point is a sharp retort to copyright reformists who think the GBS represents pushback against legislation like the Mickey Mouse Protection Act. The GBS will give us more access to books at first, but eventually copyright maximalists on the Registry board could turn Google Books into a gated garden.
In addition, if you consider this situation from the perspective of online booksellers who hope to compete with Google, the GBS is a disaster. Remember, Google now has the right to digitize any book published in the US before 2009. No other company has that right. To sell e-books, Amazon and its ilk will have to license them book by book - either from the BRR or copyright holders. The only way another company could ever hope to compete with Google at this point, as Samuelson points out, is to just start digitizing without permission and get sued so they can get a settlement as sweet as Google's.
4. Libraries and bookstores will be the same thing.
Ultimately what Google has done is transform libraries into bookstores. They've done this quite literally, by digitizing the contents of several libraries and turning them into revenue-generators. They want to sell these books; and failing that, to sell ads against them. At the same time, they are already in the process of building a massive, free archive of rare and public domain books. And they're making them available to anyone with an internet connection.
That's why the GBS has to be evaluated as a document that regulates libraries as well as a digital bookstore. A library is, after all, a vast repository of research texts that tell us the (hopefully balanced) history of our culture. There are things we demand of libraries that we don't demand of bookstores. We want libraries to be as complete as possible; we want them maintained as a public good; and perhaps most importantly we want them preserved as long as possible through changes in political regimes and fashions.
If you look at Google Books from that perspective, two basic issues emerge from the Settlement: privacy for readers, and protection against censorship (i.e., making politically unpopular books "disappear").
Currently, the government mandates that libraries protect patron records from casual searches by law enforcement. But the GBS does not require warrants for government agents to request records about who has been reading what, and when. In fact, Google will keep far more detailed records about reader habits than a librarian ever could - right down to which sections of a book you read.
And there are other disturbing elements of the GBS, too. It allows for censorship and alteration of books stored in the Google library.
Electronic Frontier Foundation staff attorney Fred Von Lohmann writes:
Even more troubling is the possibility of selective alterations of the texts of the books themselves. In Section 3.10(c)(i), the settlement forbids Google "except as expressly authorized by the Registered Rightsholder" from altering the text of scanned books when displayed to users. That's certainly a good thing, as far as it goes-we shouldn't want Google to be able to go in and selectively edit books. But Google is allowed to selectively edit if "authorized" by the copyright owner. Why is this permitted? And if the rightsholder "authorizes" Google to make changes, can Google refuse to do so? Will the fact of alteration be publicly visible to the reader? The answer is not clear. But clearly the better rule is a prohibition on anyone making editorial alterations in the text of scanned books (again, no library would allow a copyright owner to selectively blackline books in the stacks). Any other option creates the chilling prospect of "revising history" as imagined in Orwell's 1984.
The proposed settlement also gives Google a troubling degree of discretion when it comes to choosing which books will be publicly accessible. For example, Section 3.7(e) makes it clear that Google can exclude any scanned book it likes from public access "for editorial or non-editorial reasons." . . . It's worth noting that governments will doubtless exploit the leeway that the settlement gives to both rightsholders and Google to pull books off the digital shelves of Google Books. It's all too easy to imagine foreign governments pressuring their citizens to "remove" books from public access on Google. It's also likely that foreign governments will pressure Google to omit books from Google Books. If that comes to pass, neither Google nor the rightsholders will be able to say that they are legally constrained by the settlement from complying.
If we think of Google Books as a bookstore, the idea that people can withdraw or alter their books isn't particularly troubling. But when you consider that millions of books will be in the library, many by authors who are dead or cannot be found, these clauses become censorship invitations. They could be the legal loopholes that make it easy for governments to revise history.
One possible way to fix this problem would be to designate two Google Books collections, regulated differently: The Library (public domain and unclaimed works), and the Store (any book that has been claimed by a copyright owner who wants to sell it through Google).
5. Pulp science fiction will make a comeback in ways you might not expect.
The GBS represents a new stage in the evolution of the publishing industry. It offers a glimpse of what bookstores might become in the mature Information Age: A hybrid library/storefront whose job is to preserve and monetize books. It will be difficult to balance the public good of libraries with the free market of the bookstore. Will the store side win, turning the archive into an expensive gated garden? Or will the library side prevail, creating an amazing, open collection that can't be sustained because there's no revenue stream for the booksellers or the authors?
I think hope lies in the middle road, where the storefront sustains the library. But to head down that road, we need to be sure we regulate how that library is treated. Books by dead or missing authors, books we are trying to preserve, should not be as easy to "disappear" or alter as books whose copyright holders are still in charge of them. Future library/bookstores need to be regulated by more than industry groups like the Registry - for the same reason that libraries today are governed by privacy laws and preservation mandates.
The good news for science fiction fans is that a merger of libraries and bookstores can only mean one thing: More pulp fiction, or cheaply-produced and distributed novels. We will have unprecedented access to pulps published in the first half of the twentieth century. Many of those novels and stories were classics that deserve a wide readership today - but they've been lost in the depths of libraries and archives.
More importantly, I think we could see a renaissance in contemporary pulp fiction. We can once again have access to weird, unusual stories that are both awesome and not sustainable under publishing's current blockbuster model. Writers of small and midlist SF books could start making money on their writing again. This is a good thing for authors and readers who love imaginative fiction.
I want to live in a future where I can find the lesbian alien "Journey To My Tentacle Cave" series on the shelves next to Stephenie Meyer's latest celebration of vampire celibacy - and one click away from Ralph Ellison's Invisible Man. That is a future of economically-sustainable openness in the stacks. And I think, with careful regulation, the GBS could be the first shaky step on the road that will take us there.
Many thanks to Derek Slater (Policy Analyst, Google), Fred Von Lohmann (Attorney, Electronic Frontier Foundation) and Joe Gratz (Attorney, Durie Tangri) for feedback and corrections on the GBS. All errors are mine, of course.
All images by Joe Alterio, except the bottom one, by Adam Koford. All these monsters and many more can be viewed in the Monsters and Robots gallery.