Google book settlement – what can we do?

The Google book settlement may be the most important undercovered tech policy / digital rights issue live today. And because it deals with the trailing edge of the long tail, it isn’t getting the attention it deserves.

What is this about? The Google books project was sued by the representatives of a small fraction of the millions of out of print books that it scanned. Instead of taking the case to trial, Google hammered out a settlement, which now needs to be approved by a judge.

The problem is that the settlement as it was written, has major anti-trust and anti-consumer implications. The settlement as written gives Google the exclusive right to scan out-of-print books and make them available. Anyone else – a competitor like Amazon, or an academic institution, or a person – would risk getting sued if they also wanted to digitize books. Legal scholar Pamela Samuelson called out the problems in The O’Reilly Radar Blog.

So is this a done deal? Not necessarily. The judge has the power to accept the agreement as written, require modifications, or reject the agreement. There are strong arguments to keep it but fix it.

Professor James Grimmelmann of New York Law School has written a clear paper explaining how to fix the settlement — remove the monopoly aspect by giving the same terms to future participants, and putting the public at the table by mandating library and reader representation on the registry board. A more detailed summary of Grimmelman’s recommendations can be found at the Law Librarian Blog. Months before the #amazonfail debacle, Grimmelmann recommended a provision that would prevent secret censorship by silently delisting books.

The US Justice Department is investigating anti-trust implications of the settlement, and the judge extended the deadline for parties to file briefs in the case by five months, from July to September.

So what can we citizens do? While individuals can’t lobby directly — this isn’t a legislative issue where you can contact your congress critter — parties with an interest in the case can express opinions to a judge.

The Electronic Frontier Foundation is recommending modifications including putting book scans in escrow. Public Knowledge also plans to file comment advocating keeping the settlement but modifying it to address problems with competition and access to orphan works. The American Library Association has weighed in. The Internet Archive and Consumers Watchdog have registered comments with the justice department, as reported by the New York Times.

But this issue isn’t getting as much attention as it deserves. It deals with the trailing edge of the long tail – works that are out of print, where the authors can’t be found. Issues that deal with new technology and consumer access – net neutrality and social media privacy seem more sexy. But over time, access to the scholarly knowledge and cultural resources locked in “out of print” works has cumulative value. Granting monopoly privileges is a slow drain on freedom, rights and knowledge.

Some of the larger organizations that often get engaged to protect consumer rights and digital freedoms — including Free Press, Consumers Union, and the Center for Democracy and Technology had not yet gotten involved when I last checked (before the original deadline). They may have gotten involved since — I’ll check, and would love to hear from folk in the know.

If you are a supporter of EFF, Public Knowledge, or the Internet Archive, thank them for their support on this issue. If you are a supporter of other groups that advocate digital rights, consumer protection, and academic freedom, please let them know that you care about this issue, and ask them to weigh in.

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