Interview with Andrew Albanese, digital publishing expert and features editor, Publishers Weekly

 

With the recent announcement of Google Editions, many of us are wondering what happened to the Google Books Settlement - ever since the Fairness Hearing in February, news on the subject has been very quiet, and all we can do is wait for the verdict. The settlement is a complicated subject, though, and it's hard to be sure exactly what it means for the publishing world. We had a chance to talk to Andrew Albanese, digital publishing expert and features editor at Publishers Weekly, who has followed the settlement closely and written many articles on it throughout its progression. This month he took some time to give us details and insight about the Google Books Settlement.

 

Like many of our readers, I am not well versed in much legal terminology, so perhaps you can explain in layman's terms the basic path this settlement has followed since it began in 2005. Exactly which books was Google intending to scan when it began this project?

I think it is safe to say Google intended to scan as many books as possible, foreign or domestic, whether still in copyright, or public domain. Of the five libraries that were initial Google partners, four offered limited selections of their books, mostly public domain titles, but the University of Michigan signed up to have its entire collection scanned, some seven million volumes. Google now has over 30 library partners worldwide. Remember, in-copyright books in the library program are not displayed beyond short, random snippets. The goals of the project for Google were initially to create a massive index of book content which would increase the power of Google's search, and to make books discoverable on the web. The settlement, however, now seeks to create something else. What began as a library, or an index, has become a large bookstore of out-of-print titles and that proposal has raised more complicated questions.

 

What, or who, first filed the lawsuit, and why?

 

The first suit was filed by the Authors Guild, but that was followed closely, weeks later, by publishers, which were organized by the Association of American Publishers. In the settlement, the two cases were consolidated. As to why these groups sued, I think they were simply afraid of Google's intentions. Afraid of the unknown, afraid of what a deep-pocketed, tech company like Google might do with copies of their books, and afraid of what the libraries they were giving copies back to might do. They were afraid that without some agreement it would be open season on their backlists, and once talks on some kind of agreement failed, they believed they had little choice but to sue. Both the deal's architects and the deal's attorneys have said as much. The initial claims in the suit are very simple: that Google is infringing on the rights of copyright holders by copying their books without permission. Google, however, says that its scanning is simply the easiest way to process mass quantities of content for a transformative purpose, indexing. Because it doesn't display in-copyright books, they argue, there is no infringement. Notably, the settlement doesn't even broach the copyright issues at the heart of the suit, and the parties still fundamentally disagree about the legality of the program.

 

Authors, publishers, the U.S. government, and artists and photographers are opposed to Google's book scanning project. With all of this opposition and the threat of copyright infringement, what are the positive aspects of Google Books?

 

Well, be careful. Some are against the scanning project, but the project as it was initially undertaken had many supporters as well. The settlement, on the other hand, has drawn significant opposition with a number of parties feeling like their professional organizations negotiated if not a bad deal, per se, then perhaps a deal they simply weren't prepared for. Many opponents of the deal would prefer to see the original fair use question litigated, which I think would be costly, time-consuming, and too risky a play for everyone, publishers and fair use advocates alike. And at the end of the day, as Random House's Richard Sarnoff has explained, a settlement made sense. Losing the suit was very possible, and winning an infringement verdict doesn't really benefit anyone, not publishers or authors, whose books would be pulled from the Web, not Google, which would face legal exposure for infringement, and certainly not users. So, the positives of the settlement are many. It expeditiously creates a universal library the likes of which we've never seen, gives new life to books left to molder on library shelves. It would also create a rights registry, something much-needed. And, it sketches out a commercial mechanism, and a royalty system for accessing digital books. While most of the books included in the settlement have long outlasted their commercial life, they still have great cultural value, and making them widely available could serve to inspire new works, or in some cases, rekindle a commercial life. Personally, I think another positive is that the scanning and the settlement have forced the industry to face the digital future more squarely, especially in terms of copyright law, our changing values regarding digital content, and the new balance between protecting revenues for creators and serving the public interest, which is the bedrock of copyright. But this discussion hasn't been easy, and I think critics who say this settlement improperly uses the courts to make an end-run around the legislative process have a solid point. Remember, for many, many authors, this settlement, 300-plus pages of legalese, just kind of showed up. It was negotiated in secret by major corporations and author groups that, frankly, were never really empowered with, nor envisioned to have the power to negotiate such a sweeping rights deal. So while the deal may have a number of undeniably positive aspects, it is easy to see why rank-and-file authors are nervous about it. Visionary as it may be, it is a remarkably complex solution to a simple copyright claim, and it is being driven home on a very quick schedule.

 

Since its initial settlement agreement, Google has come up with a revised settlement agreement that was subject to a Fairness Hearing in February. What changes were made, and what does the revised version entail?

 

Google and the parties, yes, revised the deal in November, 2009. There were a lot of changes that improved and tightened the original agreement. Among them, an odious most-favored nations clause was eliminated, and money collected for orphan works was to be directed to literacy efforts after a designated period, and the classes were narrowed. I think most importantly, the amended settlement removed a large number of foreign works from the agreement, and it opened up the scans to be re-sold by third parties. There is an FAQ on Google's site that delineates the changes much better than I could here. Still, many settlement-watchers remain frustrated by how little the revised agreement deals with the core concerns expressed by the U.S. government, among other objectors. The amended agreement did not really fundamentally address antitrust issues, specifically regarding orphan works. However, I don't know how much more the parties could have done. In its objection, the Department of Justice noted that making the deal opt-in instead of opt-out would solve most of its problems, for example. The problem there is that if you have an opt-in deal, you don't really need the settlement, you simply have a contractual arrangement. And, Google doesn't get orphan works. I think the parties did what they could in the revised deal, but there was only so far they could go and still have a settlement that met their baseline needs.

 

Judge Denny Chin, who presided over the scandalous U.S. v. Madoff case last year, is now the judge responsible for approving the amended settlement. This subject has quieted down in the media since the hearing in February, though. When can we expect a decision to be made?

 

Yet another wrinkle! In early May Chin moved on up to his new job on the Second Circuit Court of Appeals, which has thrown his future with the settlement into doubt. Some court-watchers predict he will pass the approval on to another district judge, which could mean more delay, but that, I caution, is speculation at this point. What we can say for sure is that the approval process here is unlike any other class action, because this class action is unprecedented. The settlement involved literally thousands of documents dealing with complex copyright and antitrust laws, so the process was bound to take some time. And most everyone believes whatever the verdict in the district court, whichever judge rules, and however long it takes, it will be appealed. That means the Second Circuit will likely hear this, and that means Chin will have to recuse himself, if and when the verdict hits the Second Circuit.

 

What implications will the judgment have for authors, as well as for the publishing industry in general?

 

I'm not sure I could even venture a guess here. If the deal is rejected, we can imagine all sorts of chaos, and in theory it is back to litigation on the original copyright claim. If it is approved, the corpus of out-of-print books would begin to generate income where there was none before. Of course, the deal would have to, well, it would have to work. And for all the visionary aspects here, making this deal work in practice won't just happen. There are a lot of moving parts, not the least of which is the Book Rights Registry. But, there is the very real concern regarding the precedent this settlement would set for the future use of class-action law, if approved, and the creation of license-by-defaults to get around issues without public input. I'm not really in a position to predict what might happen. But to me, the future of publishing is probably not on the line here. There are implications, big ones, for sure, but the future of publishing and authorship is far more dependent on how we handle new digital books, and new arrangements going forward. No one can say for sure what this settlement, or its rejection, will mean for the publishing industry, but I'll say this: publishing faces bigger challenges, and it has far greater opportunities, than this deal for out of print books.

 

Will Google Editions be affected by the verdict?

No, it really shouldn't be. Google Editions is a separate arrangement, done by consent with partner publishers. That is not to say that the fate of the settlement couldn't have some effect on Google's overall book program. But when I say the future of publishing has more to do with future projects, I put Google Editions, and its cloud-based, device-agnostic vision in that mix. The settlement has been quite a story, but when all is said and done, its impact on publishing will be probably be minor compared to the future being driven by Smartphones, Kindles, iPads, and soon, Google Editions.

 

 

The Editorial Staff at Bookhitch.com would like to thank Mr. Albanese for taking the time to provide such thoughtful answers to our questions. Be sure to check Publishers Weekly for updates about the Google Books Settlement.