Google Book Search: What Is Plan B?

May 5th, 2009 · 11 Comments
by Kassia Krozser

Among the truths we hold to be self-evident, there is this: the Google Book Search is an ugly beastie. A subset of entities, blinded by the dollar signs in their eyes, claimed jurisdiction for all interested parties and negotiated a settlement that, I believe, fails to achieve the goals of the parties who created the class, the Authors Guild (AG) and the American Association of Publishers (AAP).

Publishing professionals, what is Plan B?

Let’s set the stage. Google has been scanning books for approximately five years. In 2005, the AG and AAP sued, creating a class action that included anyone with in copyright book-associated rights. The negotiated settlement, which failed to include representatives of the class beyond the AG and AAP, reached in late 2008, not only created a compensation structure, but went beyond by creating a Book Rights Registry and giving Google a near-monopoly over book search for the foreseeable future. Current objections include so-called orphan works (where the copyright owner cannot be determined or located), privacy issues, anti-competitive concerns. Authors have until September 4, 2009 to opt-out of the class.

To paraphrase myself (hey, if I don’t, who will?), when the settlement was first announced, I noted that Google won in a big way. They ended up with more than they would have gotten if the AG and AAP hadn’t sued. And they got off cheap. Nice. Likewise, in the recent text-to-speech settlement between Amazon and the Authors Guild over the Kindle 2, Amazon won the public relations battle. The AG looks money hungry, grasping, and, oh, insensitive to people with disabilities. Nice.

(If I were a member of the Authors Guild, I would be frustrated beyond belief with an organization that flaunts its ignorance about technology with such abandon. I would also angry because the organization has not done a good job of explaining the real-world implications of this settlement to its members. That’s just egregious!)

The good news is that authors now have until September 4, 2009 to opt-out of the class (yeah, saying it twice because if you’re not paying attention, you might lose). This gives us time to digest the settlement and explore more issues. Yeah, it’s time to think about this seriously.

Right now, there are a few scenarios to contemplate. First, of course, is that the settlement goes through as is. Ouch. Second, the judge is able to understand and address the concerns of the broader class as well as non-class members who are impacted, magically crafting a more palatable settlement. Third, it gets tossed and we start over.

We know the issues surrounding the first. The second item includes readers (see last week’s item about privacy), librarians, other search companies, non-US publishing professionals, publishers who aren’t AAP members, authors who aren’t AG members, students, and, oh future generations who will discover the hard the lessons we learned from Amazonfail: every service has filters, blinders, and limitations. By controlling a large library of information without competition, Google control access to information.

I am not casting aspersions on intent. Amazonfail was, to the best of our knowledge, a human mistake. If we did not learn the underlying lesson, we should be shamed. No search engine is nor ever will be perfect. We need checks and balances to ensure no one entity controls access to information. Ooh, that sounded a bit paranoid, no?

But the real question, my third item — one my long-suffering friends have borne me asking for the past several weeks — is this: if this settlement is rejected by the judge, what happens next? I am not the only asking this question. Adam Hodgkin of Exact Editions raises the point as well:

Is it even possible that the best solution for Google might even be to have the Settlement rejected, or thrown back for negotiated amendment? If the Settlement and its anticipated services rolls out just as it has been formulated, specified and agreed by the parties, Google will be required to become an enforcer and an exploiter of the intellectual property in the orphan copyrights. Google will be in a very prominent and exposed position, comparable to Elsevier (which has become a kind of whipping boy for libraries and universities), or even worse, it will become subject to monopolies investigations.

Hodgkin goes on to imagine a world where this does happen, even pulling out a fancy chess term for it: “…zugzwang. None of the legally permitted moves is attractive and its the Authors and the Publishers turn to move.” His thoughts mirror mine.

I’ve said this before and I’m sure I’ll say it again: without Google (or any search engine, and this current settlement pretty much makes it unpalatable for anyone else to enter the game), the book publishing industry is up a creek. Sans paddle. If this settlement — this horribly flawed settlement (again, why aren’t authors fuming at the AAP and AG for their failures here?) — is not approved, what is Plan B?

Are publishers going to invest in the scanning, indexing, creating metadata, managing, and all the other necessary work for their books? Are they going to create an industry-wide repository that offers the highest quality search algorithms? How will the doors be opened to allow Google to index content — we all know that real people search in the oddest ways? What sort of screams will we hear when, as is surely the case when books are no longer under the Google Book Search umbrella, search results for, oh, Booksquare rank higher than the carefully scanned (and proofed? who knows) tomes.

(And let’s not get started on the entire issue relating to so-called orphan books. The mere untangling of rights by publishing houses would be the stuff of nightmares. The Book Rights Registry contemplated in the settlement could be, if done right, a valuable tool for tracking rights.)

I am one who does not believe the industry has the resources nor the drive necessary to manage a project of this magnitude. Perhaps, if a serious initiative had started a decade ago, we’d be having a different discussion, but now? Now, we know the complexity of the issues. Add to that a lousy economy, and I don’t see publishers stepping up to the plate and getting the job done.

So where does that leave us? Well, hmm, there’s this company called Google that has a machine for scanning, a proven process, lots of money, and, oh, a need for content to feed its advertising business. Of course, with a rejected settlement (and the knowledge that publishers are desperate), the balance of power shifts back to Google. At this point, other search entities might decide to go for a piece of the action, but they’re not going to bear the costs without some guarantee of return.

We’ve gone from a project that would scan all books — at no cost to publishers — and create the potential for new marketplaces to a settlement that creates a de facto monopoly — with so many unconsidered ramifications! — to the potential that publishers and authors will have contemplate new levels of sacrifice in order to be searchable.

Because if you cannot be found, you cannot be found.

So, publishing professionals, what is Plan B?

File Under: Square Pegs

11 responses so far ↓

  • nicola griffith // May 5, 2009 at 4:02 pm

    Let Google do the work. Let them have the info. And the search profit, for now (they’ll be doing all the work). But make sure some international non-profit foundation also gets a mirror of everything Google has, in terms of book scans. Let that non-profit, that NGO if you like, sort out a whole bunch o’ rules and procedures (TBD).

    Simplistic? Well, sure (shrug). But, hey, it’s a start.

    As for why authors aren’t fuming–well of course we are. Quietly. In publishing, to speak up leads to being labelled difficult, paranoid, unsophisticated and/or simplistic (because I don’t go into tedious detail about what should be obvious to a ten-year-old–because I assume readers are smart).

  • Alyssa Smith // May 5, 2009 at 4:32 pm

    My main objection to the settlement was not the Book Rights Registry (which, btw, has been handled by the Copyright Clearance Center up til now, albeit they are not nearly as well funded) or even the scanning of the titles and inserting them into the Google Books program, but that once the settlement is set into law, copyright owners of orphan books will have–by their inaction–given up any right to have their titles removed from Google’s database as well as any rights to sue Google for blatant disregard of their copyright.

    Beyond that, I’m cool with it. That one clause though? That’s the sticking part.

    Btw, did you see my post on this? It’s here:

    –Alyssa (booksandcorsets)

  • Michael Cader // May 5, 2009 at 4:57 pm

    Hi Kassia. I think you may be mixing search apples with orphan oranges. The “discovery” aspect of Google Book Search is alive and well in the “Partners” program, completely separate and aside from the Library program litigation. That program, which focuses on the active, in print books that most publishers care about, marches on regardless.

    Separately, remember that two big trade publishers have already created their own methods for indexing and presenting fully-searchable online versions of their books with similar capability to GBS, and third-party vendors like LibreDigital offer similar services. (And the publishers would welcome other search engines incorporating their indexes.)

  • Mike Shatzkin // May 5, 2009 at 5:03 pm

    You’re contributing to hysteria here, although you end up making the right point.
    The so-called Google monopoly is over orphans. Any book with a known c/r owner is only included if the owner wants it included. And the owner can show up and make that decision at any time. No deadline for that as I understand it.

    But you end up making the important point that nobody wants to cover the expense of doing all this scanning except Google. And I’d make the point that Google is likely, for the foreseeable future, to be among the most scrutinized companies on earth for anti-social monopolistic practices. If they start extorting money from public libraries, I’m sure there will be more opportunity to discuss it in front of Congressional committees than has ever been afforded orphan rights legislation.

  • Kassia Krozser // May 5, 2009 at 6:19 pm

    Alyssa — Did see your post and (I think) linked to it previously. I did not (as I usually do!) preface things by saying I am, generally, in favor of this settlement, though I am concerned about various precedents. Lots of ends not properly tied.

  • Wyman // May 5, 2009 at 6:54 pm

    If Google should one day look like AIG, GM, Chrysler, Citibank or lots of other big companies that may go under, who gets this asset you are speaking of and in what ways will they NOT be prohibited from using it. For example, could some future owner/controller of this content, actually sell it like books are now sold? What litigation might arise in the future? Are these questions being asked? I am far down the ladder of understanding on this. I am also wondering if future authors will be forced into having their books scanned or if not forced, put in a position where it will almost be insane to opt out if you want your work to sell or have potential for future republishing, like many classic books today. Thank you.

  • Kassia Krozser // May 5, 2009 at 9:41 pm

    Michael (vs Mike!) — Agreed. I did not make myself clear in that regard. I was focused on those books that, for one reason or another, have fallen into the out-of-print category. Current catalog isn’t so much a worry for various reasons (including the fact that majority of these books are already digitized). What concerns me — and I have been supportive of this settlement (and the overall project) since the beginning — is the closed nature of the system as provided by the settlement. I personally believe it would have been better for all parties involved if the litigation had never happened.

    But it did. And we’re faced with a flawed settlement that, because two parties created a class that is clearly broader than being represented. I oversimplified the process, coming to a point where the publishers win (either in court or by Google ceding the field, however that happens from a legal perspective). If that happens, all of the issues remain on the table, but the burden for creating a viable digital library shifts to publishers. You know as well as I do that each house will approach this is ways that suit current management perspectives — perspectives that may very well suit short-term goals, not long-term business. You note that big trade publishers have created a method for indexing and full-text search and are willing to provide this information to Google and other search companies.

    Are they really? I’m asking as one who is entirely hopeful this is the case, but cynical about openness versus need to keep things exclusive. Search on our website instead of Google and we’ll reveal all! But revealing all, when doing research, is only relevant if you can compare results to a larger population. This is where the library aspect comes into play: we need to be able to weigh various results and sources. Search is subjective, and we all know that using the same search criteria on different services yields different results.

    I liked it when Microsoft was part of the game. I never felt they were committed to book search as a business model, but I liked that they provided an alternative.

  • Kassia Krozser // May 5, 2009 at 10:01 pm

    Mike (vs Michael): Hysteria? Moi? Perish the thoug–okay, maybe the meandering to my point went on a bit long. I am not concerned with those rights owners who cannot be bothered to assert said rights. Once upon a time I was baffled that anyone who had a financial stake in creative work would lose track of their property, but I’ve seen it happen so often, I have lost the capacity to wonder how it happens. It does. For whatever reason, people stop caring, and if this settlement does anything to remind authors of the value of their work, I am pleased.

    As a long-time proponent of this project and settlement (and I realize from comments that I need to keep making this point), I have concerns. I am not alone in my concerns. As I noted to Michael Cader, my preference would have been for Google to continue unlitigated, but I know that wouldn’t be possible in the most perfect of worlds. Obviously (hmm maybe not, but trust me), nothing I’ve written is under the scope of this settlement, but the fact that there are limitations in access impacts me. I believe we need to talk about it publicly because, weirdly (or maybe not), people who should know, should understand, should be involved were not and are not.

    The stakes are long-term, so I want stakeholders to at least consider all perspectives. Authors have the right to opt-out (and I was watching some passive Twitter commentary last week where various authors were proclaiming they’d opted out, while I wondered “do they know what that means?”), but do they know the long-term impact of their actions, one way or the other?

    To my mind, the absolute worst case scenario (and the one I jumped to in my timeline) is the class prevailing. Best case would be Google reverting to pre-settlement activity. That leaves the actual settlement in the middle.

    Yes, thoughts evolving. I am partially thinking out loud.

  • Richard Hargis // May 6, 2009 at 5:01 pm

    Well, one thing’s for sure, if we can turn this thing around to the authors’ favor, we’ll be well-indexed regardless of how much or little words we sell. As the metaphor goes, I’ve been led midstream, with the creative bank on one side, the marketing on tuther. Please show me the “shallow end.”

  • Joshua // May 10, 2009 at 9:11 pm

    I think there is one point neglected here somewhat, although no one wants a monpoly – at least Google opens up the service and data in a way no other publisher would ever do. Through the Google Books API you can access and take advantage of all the information they have, including embedding and viewing the books themselves.

  • Jerome Garchik // May 12, 2009 at 10:38 am

    I am a SF Atty. I taught a seminar on the Google Settlement for California Lawyers for the Arts recently, with David Weir and Peter Brantly.Did you see today’s NY Times piece on book piracy on the web? I think this issue weighs in favor of the Settlement, and the Registry, to control outright book piracy violations.
    Your comments also say nothing about the $60 to $300 per book class action damage payment to authors who file claim forms by Jan 10,2010.Authors can claim the money and still deny Google the right to e-publish snippets, preview or download, and tell Google how much to charge. Many authors I know have are pleased about the deal.partly for the exposure it promises. Did you see that Daniell Steel has endorsed Sony’s kindle device?
    I think most blogs are too glib in trashing the settlement. Google scan efforts were initiated by library administrators at large public universities, and I believe ,except for Harvard, these still endorse the project.

    J.Garchik, SF Attorney