The American Library Association (through the Association’s Washington Office and the Association of College and Research Libraries Division) and the Association of Research Libraries filed a brief [PDF] with the court in support of the Google Book Search Settlement while asking the judge to “exercise vigorous oversight” over details the settlement. In the 22-page amicus1 brief, the library associations say they do not oppose the settlement, but they do request that the courts provide strict oversight of the activities of Google and the Book Rights Registry. From page 2 of the brief:
The Settlement, therefore, will likely have a significant and lasting impact on libraries and the public, including authors and publishers. But in the absence of competition for the services enabled by the Settlement, this impact may not be entirely positive. The Settlement could compromise fundamental library values such as equity of access to information, patron privacy, and intellectual freedom. In order to mitigate the possible negative effects the Settlement may have on libraries and the public at large, the Library Associations request that this Court vigorously exercise its jurisdiction over the interpretation and implementation of the Settlement.
The brief then describes “concerns with the Settlement, and how the Court’s oversight can ameliorate those concerns.”
The concerns stated in the brief are:
“The Settlement Creates An Essential Facility With Concentrated Control.”
The settlement allows for Google to sell access to an “institutional subscription database” consisting of at least 85% of the scanned books. The brief argues that “it is possible that faculty and students at institutions of higher education will come to view the institutional subscription as an indispensable research tool…. The institution’s administration might also insist that the library purchase an institutional subscription so that the institution can remain competitive with other institutions of higher education in terms of the recruitment and retention of faculty and students.” The brief the describes the difficulties in envisioning the formation of a competitor to Google for offering the same service, and the resulting “possibility that the Registry or Google might abuse the control the Settlement confers upon them.”
“The Settlement Could Limit Access to the ISD.”
In addition to noting the lack of competition (with the anticipated effect of keeping subscription costs low), the brief also notes that “Google’s business model, at least with respect to the institutional subscription, may change, and at some point in the future it may seek a profit maximizing price structure that has the effect of reducing access.” The Settlement specifies that pricing will be based on comparable products and services. Although there are nothing in the marketplace directly compares to the institutional subscription database, a likely model that could be followed is that of online journals “with strategies that maximize profits by selling subscriptions to few customers at high cost.” Secondly, the Settlement does not contain a process by which a potential purchaser can challenge the pricing model.
“The Settlement Will Heighten Inequalities Among Libraries.”
This is a “digital divide” argument with the supposition that the institutional subscription pricing model could exacerbate the separation between well-resourced libraries and those with fewer monetary resources. Notably, the brief offers that the divide might occur such that K-12 schools can afford an institutional subscription but that higher education libraries could not.
“The Settlement Does Not Protect User Privacy.”
The brief says the settlement is either silent on this issue of patron privacy, or contains troubling provisions (such as printed portions of book containing an encrypted session watermark that identifies the “user that printed the material or the access point from which the material was printed.” In contrast, there is a 17-page appendix to the agreement that specifies the security measures required for the fully participating library to hold the digital copies of the scan. The brief notes this stark difference in saying: “Evidently, in the Settlement negotiations the class representatives insisted on these measures to protect the security of digital copies of their books; but no one demanded protection of user privacy.” The brief calls upon Google to live up to its statements to take appropriate measures to protect user privacy in consultation with the library associations.
“The Settlement Could Limit Intellectual Freedom.”
The brief posits that activities of local, state, federal, and foreign governments to suppress some materials from the institutional subscription databases, and such efforts can have an impact across a wide array of libraries. (It notes the existing activities local and state governments to suppress materials on alternative lifestyles and evolutions. It also notes the activities of foreign governments that impact Google search results to citizens of some nations.)
“The Settlement Could Frustrate the Development of Innovative Services.”
Many commentators have noted that the class action settlement is not binding on defendants other than Google, and that the legal process of another company getting the same settlement terms in court is perilous and expensive. This library association brief makes those same arguments in this section. (“The class action mechanism cannot bind absent rightsholders with respect to third parties not participating in the Settlement.”) The brief also notes that there is nothing in the settlement that compels the Book Rights Registry to enter into agreements with third party providers for the portion of the scanned books where the rightsholders have come forward through the Registry. (For instance, “if the rightsholders of 1 million books register with the Registry, the Registry would be able to license to Amazon.com the right to sell access to the 1 million books.”) The Registry might also not be able to adequately represent the desires of all class members — for instance, those that desire the maximum distribution of their content over the maximization of profit associated with distribution.
“This Court Can Address The Library Associations’ Concerns Through Rigorous Oversight of the Implementation of the Settlement.”
In the final section of the brief, the library association latch onto a statement in the Settlement — that the Court “shall retain jurisdiction over the interpretation and implementation of the Settlement Agreement” — and use it to “ensure the broadest possible public benefit from the services the Settlement enables.” Specifically, the brief suggests the court follow these actions:
- Any library or other possible institutional subscriber must have the ability to request this Court to review the pricing of an institutional subscription. The Court’s standard of review should be whether the price meets the economic objectives set forth in the Settlement, i.e., “(1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education.”
- Any entity must have the ability to request this Court to review the Registry’s refusal to license copyrights to books on the same terms available to Google.
- Any class member must have the ability to request this Court to review the procedures by which the Registry selects members of its board of directors, and to evaluate whether the Registry properly considers the interests of all class members in its decision-making.
- Any user must have the ability to request this Court to direct Google to provide the user with a list of books excluded from any of its services for editorial or non-editorial reasons, and an explanation of why it was excluded. Google already must provide the Registry with a list of books excluded for editorial reasons.
- Any researcher must have the ability to request this Court to review the reasonableness of a Research Corpus host site’s refusal to allow the researcher to conduct a research project at the host site.
- Any user must have the ability to request this Court to direct Google and the Registry to disclose their policies for collecting, retaining, disseminating, and protecting personally identifiable information. Additionally, any user must have the ability to request this Court to review whether Google and the Registry are complying with their privacy policies.
Reading it for yourself
This is just a summary of the brief [PDF]. It is roughly 20 pages of double-spaced text, written in a layman-approachable style. As James Grimmelmann notes in the tail end of his summary, “The model here is the ASCAP and BMI consent decrees, which let customers petition a supervising court for review if ASCAP or BMI overstep their bounds. Provided the court is willing to exercise this degree of oversight, the brief comes down in favor of the settlement.” To my reading, that seems like a reasonable thing to ask. For the librarians and library technologists (and anyone else, for that matter) in the DLTJ audience, does this seem reasonable to you?
The text was modified to update a link from http://www.acrl.ala.org/acrlinsider/2009/05/04/ala-acrl-and-arl-ask-judge-to-assert-vigorous-oversight-of-proposed-google-book-search-settlement/ to http://www.acrl.ala.org/acrlinsider/archives/842 on November 13th, 2012.