Judging Clarity: The AAP, Google, AG Settlement

There has been an increasing amount of discussion – mainly on the Interwebs and via list serves, etc. — about the proposed settlement between Google, AAP and AG. The agreement is set to be approved by the presiding judge in mid-year and there are no indications that the judge will fail to approve the agreement. The agreement itself is so complex that this complexity may be resulting in a lack of coherence to the objections that some parties have; but, as I see it there are several themes to the objections and some of these came out during an open meeting I attended at Columbia University Law School on Friday.

Firstly, at the core of this agreement, is a provision to set up a Book Registry (BR) that will manage bibliographic information, document copyright holder details, as well as enable sophisticated opt out/in functionality and provide for collect and pay. The Registry is being funded initially by Google and will have a board of directors chosen equally between the parties (ex-Google).There is some concern about how this operation will function since the details are not laid out in the document (only its obligations). For example, the Registry will arbitrate between potentially conflicting parties regarding copyright ownership. The exact mechanics of this remain cloudy and so some believe this lack of clarity is cause for concern. Unclear also is how this organization will be constructed, although AAP and AG are among those involved in the upcoming naming of an Executive Director of the Registry. Articles of incorporation will be filed with the State of New York in the next week which assumes the establishment of bi-laws and a board of directors for the BR. A question was asked about the eventual representational breadth of the board beyond members of AAP and AG to which the response was ‘we hope to represent as many groups as possible without it becoming cumbersome.’

Secondly, there is concern about the sales process and the mechanism for determining who pays what. This question was not addressed in full although it is Google who will be selling the books database product to libraries and other institutions. The scope of the customer base is not clear; e.g., it is not clear whether the Library of Congress would be an eligible institutional subscriber. Since this is not Google’s (natural) business, it is assumed the company will find a third party (or more than one) to sell this database for them into this market. One panel member expressed strong concern that monopolistic factors could develop in the sales of the product particularly a monopoly of the content for sale. Even if Google commissioned multiple sales agents, pricing could not diverge from that established by the BR, which would receive input from Google. (There was some under-current of belief that this database of out-of- print, old, ‘orphan’ works is a public good and should, therefore, be open to all).

The pricing formula seems to be susceptible to black box determination and isn’t clear. In the document specific prices per title are noted (in the context that x number should be priced at y price and z number priced at w price, etc). It would seem logical that there will be an all in price per some recognized measure (such as enrollment or population served). Having said that, there may need to be some type of sliding scale resulting in some of the larger universities and institutions paying a proportionately larger amount than smaller schools but how (or if) this will develop may have more to do with experimentation that anything. Any customer is going to want some clarity regarding the price they are being offered and how their price compares with another similar institution. There is also the question of what types of libraries are eligible for subscription; e.g., would libraries within hospitals qualify? The mechanic's library? It may come down to anyone with cash.

Pricing assumes there is value in this database and, in the aggregate this is probable. And perhaps as the books are progressively interlinked (assuming this will form some of their development), then value will increase. In the final analysis, academic libraries are going to view this as a must-have database and will be pressured by their faculties and researchers to subscribe. Publishers with many titles in the database will make some money but the average author is unlikely to make much at all. (This doesn’t negate the benefit that their intellectual work will now be far more easily accessible). As an aside, in pricing this database, I believe the emphasis will be to price it as high as possible in case usage proves the product is only marginally useful.

No one at this meeting mentioned the Elsevier complaint that purchases are often “all or nothing” deals: In this case, it would be interesting if Google provided access to anyone wanting the database and then charged only for usage. The students at the small agricultural college in Texas are not going to access too many of the political science titles from Michigan and maybe they shouldn’t have to pay for them. (There is language in the agreement about domain-specific compilations — e.g., "biology" or perhaps "biological sciences" - but it is not spelled out how that would be implemented).

This is only a US deal and there will be no international access to this database. International publishers (particularly) have felt disenfranchised, since many books published overseas have been scanned as part of this process.

Regardless, Google and AAP emphasize the points that they have made every effort to enable copyright holders to participate in or opt out of the database. They have promised functionality that will enable wide flexibility from expunging the content to free access – with significant gradations with respect to access and pricing between these two points.

Google says they have spent $10-15mm (by their own declaration more than in any other class action suit) to educate the potential rights holders of this agreement. Even so, there haven’t been too many ‘reclassifications’ of books once considered “orphan”.

This will not be the last of this discussion.

Note: Thanks to Peter Brantley for his help and here are his thoughts (and the Twitter Stream) on the same meeting.