Speculating on the next GBS Settlement
Last week, the American Library Association’s (ALA) Google Book Search Settlement (GBSS) Task Force issued what might be its penultimate report, suggesting that much of the passion of the GBSS debate has dissipated. In reference to its most recent committee conference call:
The Google Settlement issue did not seem as important as it did two years earlier. In part this is because the publishing and distribution landscapes have changed rapidly. Today there are more distribution channels for ebooks, the Hathi Trust continues to grow, various publishers have initiated their own ebook programs, etc. The ebook market—including access to out of print works—is becoming increasingly varied and competitive.
As the summer spins closer to the Google Book Search settlement status conference on July 19, a variety of nuanced speculations are beginning to emerge around the set of possible scenarios that might develop in the months ahead (solid answers are not expected to emerge as early as July).
At the 2010 February 18 hearing in the SDNY, Google clearly stated that an opt-in regime was not particularly appealing to them, yet the 2011 March 22 ruling that came from the court suggested that such a path was the only one favorable to a positive review. Much of the debate therefore has centered on the parameters around which an opt-in regime might emerge. It is widely expected that all or most non-display uses would be represented in a revised settlement under an opt-out basis; unfortunately for cultural sector organizations, these are the uses that are most likely to legitimately fall under a Fair Use exemption. It remains to be seen if an opt-out endorsement for snippet view would harm the ability of libraries to assert copyright exception for similar uses for their own digital collections.
Arguably, not just Google would see diminished benefit from an all-parties opt-in regime for commercial uses. For many publishers, the existing Google Partners Program permits a degree of control over terms of access and revenue distribution that is unavailable through the settlement. At the cost of some bright-line clarity over author-publisher distributions associated with older contracts, publishers lose only the availability of an institutional subscription database (ISD); a revenue model that is increasingly faulted for its coverage gaps as trade publishers pull out their more attractive titles, and academic publishers waver towards more open access principles under pressure from their host institutions and faculty authors. Additionally, academic catalog initiatives from Project Muse and JSTOR are likely to claim an ever-growing portion of university press backlists, and as trade backlist titles are digitized and enter markets at Amazon, Barnes & Noble, and Kobo, only smaller or niche publishers with fewer resources might benefit from settlement clauses. They are not the ones at the bargaining table.
It is conceivable that the participant publisher representative body, the Association of American Publishers (AAP) lacks the financial resources to participate in a resumption of costly litigation in a case where even the discovery process was never completed. Indeed, the scope of material available for discovery now is vastly greater, with millions more books scanned and many more agreements with international libraries in place. As the ALA report suggests, the AAP’s most vocal members, the trade publishers, are well aware that the world has moved on – a sentiment widely expressed to me off-hand as recently as the 2011 BookExpo America exposition. It seems entirely conceivable that the publishers might be willing to fold their cards, with only compensation for claims of past infringement as their ticket out of this increasingly dreary poker game.
This would leave the authors to negotiate with Google alone. It is not a far-fetched notion: the class action attorneys for the Authors Guild are operating under the premise that a settlement would fetch them their fair portion of an allocated $45.5 million in attorney fees; there’s a clear financial incentive to see some kind of settlement emerge. But if it is to be authors only, what would an opt-in settlement look like?
In the face of continuing litigation over the split of revenue between authors and publishers for books governed by older contracts which did not anticipate digital availability, it might be appealing for authors with strong rights claims to be able to commercialize their titles. There is no “Authors Program” of the same standing as the publishers program, and while individual authors could attempt to enter into contracts, the entry barrier is relatively high. For many authors, better to have the opportunity to opt-in to commercialization for business models that permit readers to buy individual books that would otherwise not likely be noticed in the market. Although authors can opt for rapidly-emerging self-publishing options that would permit entry in distribution channels, the prospective revenue of many older titles is modest. Inclusion in an Internet scale finding aid would be better than solitary competition against a mass of newly emerging titles and authors.
Calving off the publishers and leaving the authors in a much reduced settlement, while of some benefit to Google, would have other ramifications. For example, it would eliminate any remaining motivation to carry forward an ISD offering, leaving only individual title business models available for refinement.
A crucial unresolved question is whether an author class could be certified. The Court acknowledged that the objections of academic authors to the settlement held merit; party briefs for the settlement stated that the interests of these authors were “plainly inimical” to the interests of the class. There would be a challenge in re-binding academic authors to the goals of a new revision: a challenge, but one conceivably met if the lessened barrier for class representation of opt-in participation was stipulated.
This leaves perhaps the biggest conundrum: the disposition of the Books Rights Registry (BRR). An Authors Guild-only settlement would leave the current conception of the BRR severely under-funded, since it would be starved of significant publisher title revenue. It is conceivable that the BRR could be re-specified as a registry-only service, perhaps with court-appointed oversight to appease some of the private-party concerns expressed by settlement objectors. Excision from the settlement of some administrative burdens, such as author-publisher contract mediation, would permit the BRR to settle into a leaner operational model closer to the European ARROW project. Re-allocation or re-provisioning of licensing income might be another path towards financial stability, but this is an issue of concern for any settlement of reduced ambition. The BRR is the cobbler’s child that has no shoes (or perhaps only huaraches).
This discussion has attempted to illuminate one possible path forward; I present no assertion that this must be the road taken, and while directions such as this are being debated, the complex mix of factors and interests dictates hard against definitive analysis. Still, it is likely to be some form of reduced, hybrid model that emerges from the on-going discussions of the parties in the GBSS in the summer months ahead.
