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Copyright Law

: LibraryLaw Blog

The undiscussed danger to libraries in the Google Books Settlement

By Mary Minow, Esq.

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There is an awful lot to read and digest in the hundreds of pages in the Google Books Settlement, and librarians have been at the forefront in identifying important issues. Jonathan Band's excellent "Guides for the Perplexed" and the recent concern with privacy issues (see also EPIC's overview of the Settlement and privacy issues) are just two of the ways that librarians are striving to make a useful product even better.

Nevertheless, I have been surprised at the lack of discussion in the library community about what I feel is one of the most problematic features of the settlement: printing fees in the Public Access Service. The Public Access Service is the free license that every public library can receive that allows that library to access the proposed books database from one of the library's computers. Users are allowed to view the entire text of the book (unlike the Consumer Purchase model, which only allows you to see up to 20% of the book without paying), but they are not allowed to download the book. Users can, however, print out pages from the book.

Here is the kicker: if the library charges a fee for printing (and how many libraries can allow users to print for free?), then they are required by Section 4.8(a)(ii) of the Agreement to charge users for the printing. Google will collect the money on behalf of libraries and pass it on to the Registry. Google has agreed to pay the cost of the printing for the first five years or $3 million, whichever comes first.

It is standard practice in many libraries to charge for the cost of paper and toner associated with printing from networked resources. I cannot think of a single licensed resource, however, that also wants libraries to pay a use fee for that printing. It is the equivalent of not only having users pay for costs of photocopying, but also having to send a royalty check to the Copyright Clearance Center for every page they print. And note that there is no provision for fair use in this requirement - printing even one page will result in the payment of a royalty to the Books Rights Registry.

The privacy implications of this requirement are tremendous as well. Google could require users to provide identification and a credit card to pay for the printing, with obvious implications for reading anonymously. But if they were going to do this, the feature could have been implemented as part of the Consumer Purchase model; there would be no reason to limit it to Public Access Service subscriptions. So that means that somehow the libraries are going to have be involved, tracking the amount of printing that is done by users, capturing payments, and passing the money along to Google to give to the Registry.

Section 4.8(a)(ii) marks a radical change in the relationship between libraries and rights holders. Thanks to Section 108 of the Copyright Act, libraries are not responsible for royalties that may be required as a product of patron copying. As long as the library posts the proper notices and has no knowledge that violations are occurring, it also has no liability for potentially infringing acts by users. The Google Books Settlement overturns almost 75 years of law and practice and makes the library (or possibly Google, if it acts as an agent for the library) an active monitor of what its patrons choose to reproduce. And if the Books Rights Registry can demand this, other vendors will start requiring it as well. I imagine that in 10 years, every license agreement that libraries sign will stipulate a royalty for user printing, and mandatory licenses for photocopying may not be far behind.

Privacy, anti-trust, and orphan works are important issues. But am I wrong in thinking that this innocuous-sounding little clause in the middle of the Agreement may do more to change the way libraries operate than other element of the Settlement?

Full post as published by LibraryLaw Blog on August 16, 2009 (boomark / email).

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