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Book Search Settlement. The Original Project. The original Google Book Search project combined two related programs: The Partner Project. The Library Program. Partner Program. Limited Preview. Permits view of entire pages from the book, but not all the pages are available for view.

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The Original Project

The original Google Book Search project combined two related programs:

  • The Partner Project.

  • The Library Program.



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Limited Preview

Permits view of entire pages from the book, but not all the pages are available for view.


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Library Project

Scanned from public libraries

In-copyright books / orphan books

Public domain books

Snippets

Browse full-text or download PDF


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Snippet View

Each snippet contains only a few lines, and only three snippets could be shown per book


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The original Project – Cont.

  • Google did not seek permission due to [proclaimed] enormous transaction costs.

  • Opt-out option:

    • Copyright owners could request Google not to include their works in the database.

  • Opt-in option – Partner Program:

    • By doing so copyright owners could share revenue with Google.


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Why Could be Liable?

  • Scanning involved copying which may infringe the copyright owner’s rights.

  • Google also converted files into searchable formats, using Optical Character Recognition (OCR) software.

  • In addition- Google made copies of each file for participating libraries.


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Legal Liability – cont.

  • Google could escape liability only if its copying is permitted under the fair-use doctrine.


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Precedent – Kelly v. Arriba Soft

  • Arriba Soft, a commercial search engine, created a database of thumbnail images copied from the internet.

    • The thumbnails were displayed in response to specific search queries, and each thumbnail linked to the original website.

  • Kelly, a photographer, whose images were included in the database, sued for copyright infringement.


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Kelly – Cont.

  • The trial and the appellate court both found Arriba Soft’s use to be fair:

    • Arriba used the work in a different manner, and therefore did not supplement the original work.

    • Search engines have an important social utility.

    • The search engine did not harm the sales of the images – on the contrary, it could help increase sales by directing viewers to Kelly’s website.


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Applying Kelly to Google?

GOOOOO argued it had an even stronger case than Arriba:

  • The snippets show even less of the work than Arriba’s thumbnails.

  • An index to “all the books in the world” may be even more useful than a search engine.

  • Google allowed an opt-out option.


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Applying Kelly to Google?

The authors and publishers on the other hand, argued that Google’s Book Project was very different from the Kelly case:

  • Kelly willingly placed his photo on his website, knowing it would be subject to search engines, yet he did not use “do not enter” software signs.

  • Google’s use harms the market for digital archives of books.

  • Google created a risk of wide-spread infringement by digitizing the books.

  • Kelly involved only one plaintiff.

  • Other Related Cases


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So what does the goooogle Books Settlement include?


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The Settlement -Overview

  • Looking at the past – Google will be released from liability for its previous scanning and displaying of works, in exchange for one-time payment of about $125 million.

  • Looking forward – Google will be allowed to continue scanning and displaying books, in exchange for 63% of its net revenue from advertising.


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The Settlement -Overview

  • A Book Rights Registry (BRR) will be established.

  • An Institutional Subscription System will be adopted.

  • For orphan works this means that Google can go on with its copying while holding a share of the revenues “in trust” for “missing” rights holders.

  • Owners of copyrights in books created prior to January 5, 2009, may opt-out from the settlement or opt-in to other terms with Google.

    • Does not apply to periodicals.

    • Applies only to US and foreign owners of ”US copyright”.


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The Settlement -Overview

Owners can opt-out from the settlement, or permit different uses (remove books, exclude users etc.)

The settlement needs to be approved by the court deciding the class action.


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Book rights registry

The BRR’s goal is to mediate between Google and copyright owners:

  • The BRR will take payments from Google and pass then on to the appropriate authors and publishers.

  • The BRR will deliver copyrights owner’s requests to Google regarding the level of access allowed to their books.

BRR

Copyright holder


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Institutional subscription

  • Will allow Google to sell digital access to entire catalog of scanned books to companies, colleges and potentially even individuals.

  • A Public Access Service will provide a veryrestricted version of the Institutional Subscription to colleges and public libraries- for free.

  • A Consumer Purchase System will allow Google to sell electronic access to the complete version of individual books.

  • The revenues will flow to copyright owners based on a63/ 37 split.


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    non Consumptive research

    • This program will allow researchers to run gigantic automated statistical studieson the entire body of scanned books.

    • For this use copyright holders will not be paid, under the assumption that the works are not used by people reading portions of the books.


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    Libraries Previously

    in Partner Program

    • The libraries that have been supplying books through the Partner Program are not parties to the lawsuit.

    • However, the settlement includes a provision that enables them to sign an agreement with the BRR – effectively releasing them of liability.


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    Current Participating Libraries

    • A Fully Participating Library (FPL) will provide Google with copyrighted books to scan into its database.

    • Libraries that receive from Google digital copies (LDC) of their books, must agree to keep them under secure and limited access conditions.

    • FPL’s must sign an agreement with BRR which releases them from liability of infringement on one hand, but also limits the library’s use of the digital copy on the other hand.


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    Users’ point of view

    The settlement creates three “products” for US users

    Availability of an individual book for each product depends on its status



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    Consumer Purchase

    • Users can buy online access to the full text of a specific book.

    • Consumer can print 20 pages at once; cut/paste 4 pages at once; can make book annotations.

      Price: Either set by copyright holder, or Google will set price algorithmically between 1.99$ at 29.99$ (about 80% of books are priced below 10$).


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    institutional subscription

    • Institutions can purchase annual subscription to allow access to full texts.

    • Access will be limited to “appropriate individuals” within the institution.

    • User can: print 20 pages at once; cut/paste 4 pages at once; make book annotations; provide links to e-reserves or course management systems.


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    ‘s obligations

    • Within 5 years, Google must provide previews, public access service and institutional subscriptions for 85% of the copyrighted in-print books it has scanned.

    • Google must make reasonable efforts to accommodate for users with print disabilities, including: screen enlargement, voice output and Braille displays.

    • Financial obligations: One time payment of at least 60$ to each book + revenue sharing - 63/37 split.


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    Advantages of the Books Settlement


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    For Publishers & Authors

    • The BRR resolves the claims of all class members: publishers, authors and even absent members.

    • Financial advantage - Google makes substantial revenues from selling ads, subscriptions and e-books – while the publishers and authors get the lion’s share of these revenues.


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    For the users

    The settlement has the potential of providing access to a digital library of millions of books-

    • For most books users can see up to 20% for free (rather then just 3 snippets).

    • Users can also gain free access to full text through limited public access services.

    • Consumers can purchase access to specific books.

    • Universities, schools, companies and other institutions can subscribe to the full database of e-books.

    • Scholars can perform non-consumptive research.

    • Participating libraries receive digital copies of their books.


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    For the users

    • Ad’s: Google promises not to use pop-up or pop-under advertisements, and the BRR will to take action against authors presenting their books with “animated, audio or video” ads.

    • Fair-Use rights: the Institutional Subscription terms will not “prohibit any use… that would otherwise be permitted under the Copyright Act” – this [seemingly] retains users’ fair use rights.


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    For

    • By adopting the BRR mechanism, the settlement addresses one of the central problems, regarding clearing the rights to millions of books -transaction costs and uncertainty

    • Google can continue scanning books into its search index.

    • Google will not pay royalties on scanning or searching. The payment begins only once a user clicks on a page of a specific book.

    • Google still gains 37% of the revenue from the project, while avoiding liabilityfor infringement.


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    Disadvantages of the Books Settlement


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    BRR - antitrust threat

    The BRR is a centralized entity, with substantial authority-

    to negotiate on behalf of owners, approve the security standards and has broad discretion to work out the revenue splitting formula between publishers and authors.


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    BRR - Antitrust Threat

    • The settlement recognizes this danger, and accordingly puts limits on the BRR:

      • Limits the BRR from representing subgroups of copyright holders.

      • Ensures licenses granted are non-exclusive.

      • Ensures opt-out options, even after several years.

    • However, The BRR is still an anticompetitive threat because of it’s class action binding effect.


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    - Antitrust Threat

    • The settlement does not formally prevent anyone involved from doing deals with others - however the issue of transaction costs could de-facto prevent competitors from entering the market.

    • Furthermore, for 10 years the BRR can’t give anyone else better terms than Google gets (“most-favored-nation” clause).

      Thus, Google would probably become the only one that can provide scanning and searching books services on such a scale.


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    Protecting the Consumers

    • A no-price discrimination clause should be included in the settlement.

    • Reader privacy protection should be insured- thesettlement currently does not include an explicit reader privacy guarantee .

    • Accountability and transparency should be further increased.

    • Purchasing subscriptions and other e-services could have a budget impacton institutions.


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    Additional difficulties

    • Insufficient public access.

    • Such a comprehensive digital library is far too important to be trusted in the hands of private corporations – Is there a “public-failure” ?

    • Quality concerns:

      • Discretion to exclude – “holes” in books.

      • Research will decline – users will scan or preview rather than read.

    • Chilling effect on fair use (for both private users and libraries).

    • General change in the roll of libraries.



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