Volume 57, Number 3 · February 25, 2010
The Google Books Settlement: An Exchange with the Authors Guild
By Roy Blount, Jr., Judy Blume, Pat Cummings, Jennifer Egan, James Gleick, Peter Petre et al.
In response to Google & the Future of Books: An Exchange (January 14, 2010)
To the Editors:
In his essays here about our lawsuit against Google ["Google and the New Digital Future,"NYR, December 17, 2009, and "Google & the Future of Books: An Exchange,"NYR, January 14, 2010], Robert Darnton has written with such passion and seeming authority that your readers might think he has accurately conveyed the basic facts. Alas, he has not. Please allow us to correct some fundamental errors.
- He states that the settlement "will make it possible for consumers to purchase access to millions of copyrighted books currently in print."
It won't. The settlement focuses on out-of-print books, available only in libraries and used bookshops. Google's scans of in-print books may not be displayed at all—not a three-line snippet, much less a full-length book—without both the publisher's and the author's approval. That will seldom be forthcoming, because manual scans of library books are no substitute for the pristine digital versions that publishers have been producing for a decade. (Google, Amazon, and others already use those digital versions to display previews by arrangement with publishers; that has nothing to do with the settlement.)
- This basic misunderstanding seems to motivate Mr. Darnton's most sweeping warnings, such as his conjecture that the settlement "looked likely to determine the digital future for all of us."
On the contrary, out-of-print books are not destined to shape our digital future. Lost in the discussion is one cardinal fact: the current marketplace for these books is, by definition, nil. The great promise of the settlement is to create a resource that would otherwise not exist.
- Mr. Darnton raises the specter of censorship, and quotes the settlement: "‘Google may, at its discretion, exclude particular Books from one or more Display Uses for editorial or non- editorial reasons.'...Google will notify the Book Rights Registry of any book it excludes. Notification of exclusion hardly serves as a substitute for inclusion."
What he fails to mention is the key provision spelled out in the settlement's very next paragraph, negotiated by the Authors Guild and a group of academic libraries. If Google does exclude a book, it must deliver digital copies to the Book Rights Registry, which will make them available online. Neither we nor the libraries will ever stand for censorship.
- Mr. Darnton suggests that the Authors Guild will "draw income" from the settlement.
Not a penny—not now, not ever. (Countless authors, however, will receive checks in the mail as their out-of-print books, some long forgotten, come back to life.)
Mr. Darnton has put forward a variety of scenarios for digitizing out-of-print books, some more realistic than others, some admittedly utopian. They tend to require acts of Congress.
The Google settlement should not be weighed against these dreamy alternative futures. It resolves a pressing legal dispute in a manner that will work a great good for readers, while protecting the rights of authors. Every college and university will have free access to a collection of English-language works matching or exceeding that of Mr. Darnton's at Harvard. So will public libraries. Everyone concerned with the place of books in our culture should welcome that.
As members of the Authors Guild's executive board, some of us were directly involved in the thirty months of negotiations with the publishers and Google. All of us were on the settlement's nondisclosure agreement and kept apprised of developments. We all strongly support the settlement as being in the best interests of authors and readers.
Roy Blount Jr., President; Judy Blume, Vice President; Pat Cummings, Secretary; Peter Petre, Treasurer; Mary Pope Osborne, Former President; Scott Turow, Former President; Nick Taylor, Former President; Jennifer Egan, James Gleick, James Shapiro, Sarah Vowell, Authors Guild Council
Robert Darnton replies:
With due respect to the Authors Guild and the thirty months they spent negotiating a deal with Google, their claim that I described the settlement inaccurately is itself inaccurate. The Amended Settlement Agreement (ASA), like its predecessor, envisages two kinds of licenses to be made available at undetermined prices. The first, as expounded in section 4.2 of the ASA, is a consumer's license, and the second, outlined in section 4.1, lays out the conditions for an institutional subscription license.
The remarks in my article of December 17, 2009, that the Guild finds objectionable refer to the first kind of license and distinguish it clearly from the second, as can be seen by the full text of the quoted passage, which is not at all hostile to Google:
On the positive side, Google will make it possible for consumers to purchase access to millions of copyrighted books currently in print, and to read them on hand-held devices or computer screens, with payment going to authors and publishers as well as Google. Many millions more—books covered by copyright but out of print, at least seven million in all, including untold millions of "orphans" whose rightsholders have not been identified—will be available through subscriptions paid for by institutions such as universities.
According to the ASA, books in the first category will, if the copyright owners agree, be available to consumers on a digital shelf maintained for them on Google's servers. The owners of the rights to those books can refuse to cooperate with Google Book Search, and the digitized versions of their books will not be displayed without their prior approval. But by agreeing to make their works available through the consumer's license, the rightsholders will have an opportunity to sell access to works of theirs that are currently in print as well as those that are out of print, sharing the revenue with Google: 37 percent to Google, 63 percent to the rightsholders.
The debate over the settlement concerns the second category of books, which will form the bulk of a gigantic digital library, one composed primarily of works that are copyrighted but out of print, many of them orphans. These books—and those in the public domain, which Google has already digitized and made freely available, although they are not part of the settlement—will constitute a collection that could become as great as the Library of Congress. Colleges, libraries, and educational institutions of all kinds could have access to it by paying for an annual subscription. Like other admirers of Google, I think this digital library would be of enormous benefit to the general public. But I worry about its commercial character.
Because Google is a powerful monopoly, it could charge monopolistic prices, and it could abuse its exclusive control of its databases in other ways, including violations of the privacy of its customers. Even if the current directors of Google remain faithful to their slogan, "Don't be evil," they might be replaced in the future by businessmen without a similar commitment to the public good. My criticism of the ASA is not directed against Google. On the contrary, it is meant to make the most of Google's entrepreneurial energy and technological wizardry while preventing abuses by subjecting Google Book Search to the control of public authorities.
According to the solution I propose, Google and the rightsholders could profit from the sale of access to a separate digital database of books currently in print. All the other books would constitute a national digital library available to everyone, free of charge. Any author of an out-of-print but in-copyright book could opt out of this arrangement, and authors who accepted it would be able to realize a goal that is the highest priority for many of them: not so much to make money as to reach readers. Instead of lying in libraries unavailable to the great majority of the reading public, their works would take on new life, thanks to free access in a democratized digital realm.
I did not accuse the Authors Guild of trying to make money from the settlement. Instead, I expressed regret that the Book Rights Registry, which is to distribute the income generated by Google Book Search, will be composed only of representatives of authors and editors, who have an interest in maximizing that income by increasing the price of the institutional subscription. The Registry will not contain anyone to represent the interests of libraries or readers. Far from being aimed at the welfare of the reading public or the public in general, the settlement is a commercial deal negotiated privately by parties with a vested interest in its outcome.
Yet the settlement could be modified to promote the public good. As things now stand, most twentieth-century literature—the great majority of books published since 1923—cannot be made freely accessible in digital form, owing to the excessive restrictions of our copyright laws. This problem could be resolved by legislation concerning orphan works or a revised version of the ASA, which would adapt one of its current provisions for the public good—that is, rightsholders of out-of-print works would be deemed to have accepted the settlement unless they opted out.
Better yet, the federal government could finance a national digital library by working with Google and the Library of Congress. The Authors Guild accuses me of utopianism by arguing for this solution, and I plead guilty. There was a utopian element in the Enlightenment and in the thought of the Founding Fathers. I think we should draw on it. We have the means; we merely lack the will. President Nicolas Sarkozy of France recently announced that the French state would devote O750 million to the digitization of France's "patrimony." Why doesn't the Obama administration make a similar commitment? For a smaller sum it could digitize the entire Library of Congress and remedy a great deal of unemployment at the same time.
Finally, there is no denying that section 3.7 (e) of the ASA gives Google the power to censor its digital database by eliminating any book it chooses. Although the ASA requires Google to provide copies of the eliminated works to the Book Rights Registry, the terms of the settlement do not commit the Registry "to make them available online," as the Authors Guild claims; and even if the Registry did so by striking a deal with a potential competitor of Google, the institutional subscription proposed by Google could suffer from censorship—not in all likelihood because Google objected to pornography, but because it wanted to extend its business into markets such as China, where censorship exists.
That said, I think everyone should applaud Google for reversing its previous commitment to accept the censorship of its general service by the Chinese government. In making such a courageous decision, Google demonstrated its commitment to providing unadulterated information. Let us hope that in the same spirit Google will cooperate in an effort to endow the United States with a national digital library.