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Copyright Law

: LibraryLaw Blog

Virginia Makes the Google Settlement Better for Libraries

By Mary Minow, Esq.


This is old news now, but I haven?t seen anyone else has written about it.  It is important enough to note.

In mid-February, the University of Virginia Library signed a revised agreement with Google.  While ostensibly intended to bring their previous agreement into conformity with the proposed settlement to the Authors Guild suit against Google, it also contains two improvements over other amended agreements (such as Michigan?s) that have important implications for everyone interested in the settlement.

The first important change concerns ownership of the scans of the public domain works.  In the initial contracts (such as those with Michigan and California), Google retained ownership of the scans of public domain books.  While Google was required to make the scans publicly available for free, libraries were somewhat limited in what they could do with those scans.  For example, they could not use the scans in a print-on-demand (POD) operation, nor could they offer the scans to Google?s competitors.  The restrictions lasted forever.

The Michigan amendment removes restriction on print-on-demand use; Michigan can use the scans of public domain books in its POD operations (Section 18b).  As for the duration of the restrictions, all are to be removed on 1 January 2050, though Google and Michigan agreed to revisit the issue in 2024 (Section 18e).

Virginia?s revised agreement improves on Michigan?s changes.  Section 4.10(d) of UVA?s revised agreement stipulates that all restrictions on the use of the public domain scans terminate after 15 years. 

In some ways, the change is meaningless.  Michigan?s agreement allows it to do anything that the university would reasonably want to do with the scans, short of giving them to a Google competitor (and it is unclear how it would benefit Michigan to do that).  Furthermore, the fact that Google must continue to offer free access to the public domain severely limits the scope of their rights as the owner of the scans.  As a matter of principle, however, the further refinement in the Virginia contract is important.  After a relatively short period, Virginia will own the scans of all public domain books found in its library.

Given the fact that Google must make the public domain scans freely available and that the scans, which already have relatively few limitations on them will now become the full property of libraries in 15 years, as well as the presence of most of these scans in the Hathi Trust database, one has to wonder about the utility of well-meaning efforts such as those of the Internet Archive to capture and store copies of the Google scans.  The only people who immediately benefit from the presence of Google?s scans in the Internet Archive are Google?s commercial competitors.  I have to believe the public as a whole would be better served if the Internet Archive focused instead on those scans of public domain works that are locked away behind subscription firewalls.

The second major improvement in Virginia?s contract concerns the pricing of the institutional subscription.  One of the great unknowns in the settlement is how much the institutional subscription will cost.  Since the only comparable database ? Google?s own massive compilation of public domain books ? is offered to the public for free, one could argue that the subscription cost of a database of copyrighted but out-of-print books should be very, very low.  On the other hand, if the Books Rights Registry required Google to follow the model of some of the commercial databases of public domain and copyrighted books and newspapers ? a model that tries to sell a small number of subscriptions at a very high cost ? the price could be quite high. 

The Michigan amendment addresses this issue by allowing any of the participating libraries to request a review of the pricing of the institutional subscription to see if the settlement?s requirement of wide-spread access to the institutional subscription is being met.  The revised Virginia agreement stipulates in Section 10(d)(2) of the attached amendment relating to fully participating libraries that Google must make the information used in the pricing review publicly available.  As a result, the community is going to be able to know and be able to complain if only a small percentage of libraries are subscribing to the database. 

The many good features of the Michigan agreement are repeated in the Virginia amendment.  For example, the libraries are allowed to receive and store collectively copies of the scans of both settlement and non-settlement books.  The fear that somehow the Google scans are going to be solely under the control of a commercial company is misplaced. 

There is no discussion of the privacy of users of the institutional subscription, but this doesn?t concern me.  This is a marketing issue.  If Google does not offer in the institutional subscription the protections for reader privacy that libraries demand from all of their third-party vendors, then the libraries should refuse to subscribe to the database.  Since the settlement demands wide-spread subscriptions, Google would be forced to amend its policies.  If libraries do not want to exert their market influence, they have only themselves to blame.

All in all, the Virginia improvements make a settlement that is already good for users of libraries even better.  They are to be congratulated for successfully arguing for these changes.

Full post as published by LibraryLaw Blog on March 21, 2010 (boomark / email).

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