Thursday Threads: Google Books Settlement, Cornell on NDAs, Hans Rosling on Literacy

This week's big news is hard to miss -- we have a decision by the judge evaluating the settlement agreement in the Google Book Search lawsuit. This is probably the first of many follow-ups in DLTJ as this case keeps taking interesting twists and turns. Also of note this week is Cornell Library's statement that it will no longer sign contracts that include non-disclosure agreements. Lastly is a pointer to a 10 minute video of Hans Rosling's TED talk on machines leading to increased literacy.

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Settlement Rejected in the Google Books Search case

In the end, I conclude that the ASA [Amended Settlement Agreement] is not fair, adequate, and reasonable. As the United States [Department of Justice] and other objectors have noted, may of the concerns raised in the objections would be ameliorated if the ASA were converted from an "opt-out" settlement to an "opt-in" settlement. I urge the parties to consider revising the ASA accordingly. The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement. The motion for an award of attorneys' fees and costs is denied, without prejudice. The Court will hold a status conference on 4/25/2011, at 4:30 p.m. in Courtroom 11A of the Daniel Patrick Moynihan Courthouse.

Thirteen months after the last formal hearing, Judge Denny Chin issued the opinion of the New York Southern District Court: rejection of the settlement agreement between Google and a large class of authors and publishers. The path forward is not yet clear, but there seem to be three possibilities: 1) the parties file another amended agreement that effectively ignores orphan works (copyright holds would have to opt-into the settlement); 2) the parties appeal the rejection decision; or 3) the parties move back to litigating the original 2005 case (as amended in 2008). The first path -- filling another amended settlement agreement -- seems to be the most likely at the moment. In their response to the court's ruling, the Association of American Publishers said, "[the court decision] provides clear guidance to all parties as to what modifications are necessary for its approval. The publisher plaintiffs are prepared to enter into a narrower Settlement along those lines to take advantage of its groundbreaking opportunities. We hope the other parties will do so as well." Authors Guild President Scott Turow said, "we'll be studying Judge Chin's decision and plan on talking to the publishers and Google with the hope that we can arrive at a settlement within the court’s parameters that makes sense for all parties.” Google was pretty non-committal: "This is clearly disappointing, but we’ll review the court’s decision and consider our options."

In his analysis of the opinion, New York Law School professor James Grimmelmann said, "If I had to bet, I would guess that we’ll end up with a revised settlement drafted to meet Judge Chin’s specification, which will be approved relatively quickly (at least compared to this last go-round)." Professor Grimmelmann goes on to predict the outlines of what a resubmitted settlement agreement might look like:

• Google is allowed to continue scanning and searching in exchange for cash payments on the order of (but perhaps not exactly) the $60 in the present settlement, and it’s required to provide an opt-out. Very few people have argued that this form of settlement would be beyond the court’s power. The precise explanation of how this would be distinguishable from the present settlement, although quite feasible, will require some nuance and subtlety.
• The Display Uses — Consumer Purchase, Institutional Subscription, etc. — are either gone entirely ore are offered on an opt-in basis. The difference between these two possibilities is not large, since, in effect, Google already offers an opt-in through the Partner Program.
• The libraries receiving digital copies are released from liability but are even more tightly restricted in the uses they can make than under the present settlement.
• The fates of other facets of the settlement such as the Research Corpus, will be hammered out in the negotiations.

Notable news and opinion on library related aspects of this decision come from HathiTrust (highly recommended), Stanford university, Eric Hellman (on what could be next for the Book Rights Registry), and Karen Coyle (list of open questions).

James Grimmelmann continues to be a key person to read as he, along with the law school students he supervises at The Public Index, dissect and make accessible the court filings and surrounding legal opinions. The Public Index also maintains a listing of notable news articles and opinions. The commentary is also happening in Twitter, which you can read in raw form by searching Twitter for the #GBS hashtag or by reading the daily aggregation/summation paper.li #GBS hashtag newspaper

Cornell University Library’s Position on Nondisclosure Clauses in Licenses

To promote openness and fairness among libraries licensing scholarly resources, Cornell University Library will not enter into vendor contracts that require nondisclosure of pricing information or other information that does not constitute a trade secret. All new and renewed licenses submitted with nondisclosure clauses will not be signed but henceforth will be referred to the Associate University Librarian for Scholarly Resources and Special Collections for further negotiation.

Cornell's decision mirrors a resolution adopted by the Association of Research Libraries in 2009 and a statement by the International Coalition of Library Consortia in 2004. A more complete analysis of Cornell's efforts is in the Chronicle of Higher Education (behind the Chronicle's paywall) and Library Journal.

Hans Rosling and the magic washing machine

What was the greatest invention of the industrial revolution? Hans Rosling makes the case for the washing machine. With newly designed graphics from Gapminder, Rosling shows us the magic that pops up when economic growth and electricity turn a boring wash day into an intellectual day of reading.

Hans Rosling makes another stunning and insightful 10-minute presentation using key statistics about population growth and energy usage. In this one he makes a link between the use of machines to replace manual labor and the advancement of literacy with the saved time. [Discovered in an NPR Planet Money blog entry.]