Pam Samuelson on the Book Search Settlement Agreement: restructuring the publishing industry

Pam Samuelson starts her column “Legally Speaking: The Dead Souls of the Google Booksearch Settlement” at the O’Reilly Radar by saying that:

Google has scanned the texts of more than seven million books from major university research libraries for its Book Search initiative and processed the digitized copies to index their contents. Google allows users to download the entirety of these books if they are in the public domain (about 1 million of them are), but at this point makes available only “snippets” of relevant texts when the books are still in copyright unless the copyright owner has agreed to allow more to be displayed.

In the fall of 2005, the Authors Guild, which then had about 8000 members, and five publishers sued Google for copyright infringement. Google argued that its scanning, indexing, and snippet-providing was a fair and non-infringing use because it promoted wider public access to books and because Google would take out of the Book Search corpus any digitized books whose rights holders objected to their inclusion. Many copyright professionals expected the Authors Guild v. Google case to be the most important fair use case of the 21st century.

This column argues that the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. It will benefit Google and certain authors and publishers, but it is questionable whether the authors of most books in the corpus (the “dead souls” to which the title refers) would agree that the settling authors and publishers will truly represent their interests when setting terms for access to the Book Search corpus.

After discussing most important issues, such as the Orphan Works problem and the possible “de facto” Google monopoly, Professor Samuelson concludes brilliantly:

The Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a major restructuring of the book industry’s future without meaningful government oversight. The market for digitized orphan books could be competitive, but will not be if this settlement is approved as is.

In a time when major discussions are taking place in relation to afordable access to textbooks and books needed for higher education, this action of Google raises many questions related to whom else should be represented in this dispute. The question remains: Does this agreement do enough, or is clear enough, to guarantee student access to essential educational materials?