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?