On Tuesday, the University of Michigan and Google executed an amendment to the original agreement that started Google’s efforts to create a collection of scanned books. The amendment was publicized in a press release by the University of Michigan and described in a page that summarized the changes. That summary page is a the first place to start if you want to know more about the changes reflected in the amendment, but in comparing the amendment to the original agreement, I found some other interesting tidbits. The amendment amounts to an endorsement of the Settlement Agreement by the University of Michigan and, as noted by the New York Times, it also gives Google an opportunity to “rebut some criticism” (or at least clarify and expand on some of the library-related terms) of the Settlement Agreement.
The background section of the amendment gives the reason for the document:
The terms of the Settlement Agreement affect the rights and obligations of Google under the Agreement and this Amendment reflects such changes to Google’s rights and obligations, as well as other changes to the Agreement that the parties desire to make at this time or that are required by the Library-Registry (Fully Participating) Agreement.
Because the Settlement Agreement hasn’t been approved by the court, there is language in the amendment that will back some of these changes — or modify them appropriately — if the Settlement Agreement is rejected or changed. And there are definitely more lawyers involved now. The original agreement was basically 10 pages long; the amendment is 36 pages by itself, and includes by reference the entire Settlement Agreement. The amendment also liberally copies and pastes entire 200-word clauses in sections and includes sentences that are over 400 words long. If these lawyers are paid by the hour, they made out like bandits — as have the pain reliever companies from selling all of the medicines to cope with the headaches that come from reading it. I’ll try not to cause you the same pain as I point out the good bits.
“Settlement” Copies versus Public Domain Copies
Amendment sets up a definition for a Settlement Digital Copy (that which is defined as the Library Digital Copy in the Settlement Agreement) and a Non-Settlement Digital Copy (works that are and become a part of the public domain). I don’t think the Settlement Agreement covered the process for a work moving from copyright status to public domain status, and the amendment explicitly covers this activity:
Further, when that Digitized content rises into the public domain (in Google’s determination), Google will retransfer that Digitized Content to U of M provided Google retains a Digital Copy in its possession at the time and has the technical capability to transfer it to U of M.
Now Includes Special Collections?
There is an interesting change in the definition of “Available Content” that I haven’t seen talked about elsewhere; the extent of the collection that Google is digitizing is based on this definition. The original agreement said that “Available Content means the U of M print book and journal Collection, but excludes Special Collections materials.” (emphasis added) The new definition in the amendment is “the entire print library collection held by or under the control of the Regents of the University of Michigan.” Are special collections part of the “print library collection”? The phrase is not capitalized, so it isn’t defined elsewhere in the legal agreements.
Mechanism for Resolving Pricing Disputes for Institutional Subscriptions
The New York Times article focuses on the aspects of the amendment that deal with how the price of institutional subscriptions to the collection are handled. First, “Fully Participating” institutions (those that offer books to Google to be digitized and get the digital copies back) and “Cooperating” institutions (those that offer books to Google to be digitized but do not receive the digital files of those books) can hire (at Google’s expense, for the most part) a third party to review the pricing scheme. Then, if said institutions do not like the pricing review, they can submit the matter to arbitration. It is interesting to note that, should the Fully Participating and Cooperating institutions decide not to challenge the pricing structure, Google will donate a sum ($100,000 in each of the first two price-setting cycles and $50,000 each pricing cycle thereafter) to the National Federation for the Blind. It is also worth noting, as the Times article did, that Fully Participating and Cooperating institutions may not care all that much about the price of the institutional subscription because they each will have 25 years of free access to the collection (and heavily subsidized pricing after that). To what extent are the Fully Participating and Cooperating institutions going to bite the hand that feeds them (and the National Federation of the Blind) if the pricing of institutional subscriptions gets out of whack?
Funding Development of the Research Corpus Infrastructure
The amendment also sets forth funding amounts for the creation of the Research Corpus site(s). (These are the services where researchers can apply for access to the entire body of scanned works to perform computational, linguistic, or other analysis.) The amendment says:
In addition [to up to 100 personnel hours per Host Site per year for two years], Google shall provide not less than $5,000,000 in aggregate to be used at the direction of the Interested Institutions … for the development of one or more Host Sites (including Google as a Host Site)…
The amendment also sets up some of the nitty-gritty details for populating the host sites.
The text was modified to update a link from http://www.lib.umich.edu/mdp/amendment.html to http://www.lib.umich.edu/files/services/mdp/Amendment-to-Cooperative-Agreement.pdf on January 28th, 2011.
The text was modified to update a link from http://www.googlebooksettlement.com/r/view_settlement_agreement to http://web.archive.org/web/20090426091753/http://www.googlebooksettlement.com/r/view_settlement_agreement on November 13th, 2012.(This post was updated on 13-Nov-2012.)