Rare Book Monthly

Articles - November - 2009 Issue

The Google Settlement: Where It Stands, and Our Opinion on the Appropriate Resolution

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Google seeks to make


By Michael Stillman

The proposed settlement that would allow Google to offer digital copies of copyrighted books, and in particular so-called "orphan books," books that are out of print and their copyright holders hard to find, is moving ahead at a rapid pace, too rapid for some of the opponents. Google had reached a settlement with two groups representing authors and publishers, but the agreement also seeks to bind these missing copyright holders who have no say. A whole host of other parties has volunteered to speak on their behalf.

The settlement provides for an independent registry, funded by Google but managed by authors and publishers, to keep track of copyrighted books. Those available to Google would be sold with a 63%-37% split (copyright holder-Google) of revenues. Copyright holders may either put their names into the registry for their share of the royalties, or decline to participate, in which case Google will not sell access to their books. However, if neither claim nor refusal is filed (which will often be the case as many of these copyright holders could be authors dead for 60, 70, 80 years), Google will be able to sell access to the books without compensating the copyright holders.

Many parties have objected to this settlement, including competitors such as Amazon, Microsoft, Yahoo, and the nonprofit Internet Archive. Various publishing, library, and author groups can be found on each side of the issue, while Amazon book reader competitor Sony has sided with Google. Most of the opponents have banded together in an organization known as the Open Book Alliance. These groups sued in court to stop the settlement.

The case appeared to be coming close to a court ruling when the U.S. Government joined the opposition. This appeared to be a major victory for the objectors, but the government's objections may be much narrower than those of the other opponents. The government appears to want the settlement to be approved, but only after certain changes are made to allow for greater competition. The government wants other potential vendors of "orphan books" to have access to the same deal as Google, along with a few other changes. Once the government filed its objection, the court immediately put its plans for an October 6 decision on hold, and encouraged the parties to come up with a revised settlement that would resolve the differences.

Now, Google and its settlement partners have succeeded in getting the court to set the next hearing for November 9, where they will offer their revised settlement. Their hope is for a final court ruling in December or January. The Open Book Alliance reacted bitterly, claiming that Google and its settlement partners are pushing through a revision that may satisfy the government objections, but not their own (and for some of them, their hope may simply be to kill the settlement, not revise it). The OBA issued a statement saying that any settlement must be fully reviewed by all of their parties, not just the government. They continued, "It's also clear that the settlement partners have zero interest in creating an open process that takes input from critical stakeholders. Instead, Google and its partners are serving their private business interests and ignoring the public interest. They came to the courtroom without a single concrete recommendation of how they would address any of the problems with the original settlement. Instead, they proposed more of the same - secret, backroom negotiations - rather than an open, transparent and collaborative process."

We asked Google's Megan Lamb for Google's position on access by competitors to the books listed in the Registry. She responded, "The settlement is non-exclusive. The registry can do deals with any other company, including Google competitors, and as the testimony [of Google's Chief Legal Officer David Drummond before the House Judiciary Committee on September 10] says, 'If a competitor offers the registry a better deal, the registry has every incentive to take it.'" In other words, any competitor would be free to deal with the authors and publishers' registry, just as Google has. As for "orphan books," those for whom permission to republish is neither received nor denied, Ms. Lamb stated, "We have supported orphan works legislation for many years and continue to do so." She referred us to Mr. Drummond's testimony for more details on Google's position.

Rare Book Monthly

  • <b>Doyle: Hunting Books from the Collection of Arnold "Jake” Johnson. Online only auction Aug 3-14</b>
    <b>Doyle, Online only auction Aug 3-14:</b> <i>The Sportsman's Portfolio of American Field Sports.</i> 1855. Est: $600 to $900
    <b>Doyle, Online only auction Aug 3-14:</b> <i>Bishop's Birds. Etchings of Water-Fowl and Upland Game Birds.</i> 1936. Est: $200 to $300
    <b>Doyle, Online only auction Aug 3-14:</b> <i>Hunting Big Game in Far Northwest British Columbia</i>. 1904. Est: $500 to $800
    <b>Doyle, Online only auction Aug 3-14:</b> <i>Mananaland. Adventuring with Camera and Rifle Through California in Mexico.</i> 1929. Est: $400 to $600
    <b>Doyle: Hunting Books from the Collection of Arnold "Jake” Johnson. Online only auction Aug 3-14</b>
    <b>Doyle, Online only auction Aug 3-14:</b> <i>Grand Canyon Trails.</i> 1924. Est: $300 to $500
    <b>Doyle, Online only auction Aug 3-14:</b> <i>A Sporting Trip through Abyssinia. A Narrative of a nine months’ journey..</i> 1902. Est: $200 to $300
    <b>Doyle, Online only auction Aug 3-14:</b> <i>Hunting in Tanzania [...in Zimbabwe; ...the Sudan; ...in Botswana; ...in Ethiopia; ...in Zambia; ...in South Africa; ...in Kenya]</i>. 1991-2000. Est: $800 to $1200
    <b>Doyle, Online only auction Aug 3-14:</b> <i>Hounds and Hunting through the Ages ... with an Introduction by the Earl of Lonsdale</i>. 1928. Est: $600 to $900
  • <b>19th Century Shop:</b> Charles Darwin on sexuality and the transmission of hereditary characteristics: Autograph Letter Signed to Lawson Tait. Down, 17 January [1877].
    <b>19th Century Shop:</b> MILTON, JOHN. <i>Paradise Lost. A Poem written in ten books.</i> London: 1667. A very rare example with the contemporary binding untouched and with a 1667 title page.
    <b>19th Century Shop:</b> Hamilton secures the ratification of the Constitution: <i>The Debates and Proceedings of the Convention of the State of New-York, assembled at Poughkeespsie, on the 17th June, 1788.</i>
    <b>19th Century Shop:</b> The social contract “Man is born free, and everywhere he is in chains”: ROUSSEAU, JEAN-JACQUES. <i>Principes du Droit Politique [Du Contract Social]</i>. Amsterdam: Michel Rey, 1762
    <b>19th Century Shop:</b> “The first English textbook on geometrical land-measurement and surveying”: BENESE, RICHARD. <i>This Boke Sheweth the Maner of Measurynge All Maner of Lande…</i>
  • <b>Swann Auction Galleries:</b> Luis de Lucena, <i>Arte de Ajedres,</i> first edition of the earliest extant manual on modern chess, Salamanca, circa 1496-97. Sold for $68,750.
    <b>Swann Auction Galleries:</b> Carte-de-visite album with 83 images of prominent African Americans & abolitionists, circa 1860s. Sold for $47,500.
    <b>Swann Auction Galleries:</b> Gustav Klimt, <i>Das Werk,</i> Vienna & Leipzig, 1918. Sold for $106,250.
    <b>Swann Auction Galleries:</b> Man Ray, <i>[London Transport] – Keeps London Going,</i> 1938. Sold for $149,000.
    <b>Swann Auction Galleries:</b> Thomas Jefferson, Letter Signed, to Major-General Nathanael Greene, promising reinforcements against Cornwallis, 1781. Sold for $35,000.
    <b>Swann Auction Galleries:</b> Nicolas de Fer, <i>L’Amerique Divisee Selon Letendue de ses Principales Parties,</i> Paris, 1713. Sold for $30,000.
    <b>Swann Auction Galleries:</b> Russell H. Tandy, <i>The Secret in the Old Attic,</i> watercolor, pencil & ink, 1944. Sold for $35,000.
    <b>Swann Auction Galleries:</b> Ernest Hemingway, <i>Three Stories & Ten Poems,</i> first edition of the author's first book, Paris, 1923. Sold for $23,750.
    <b>Swann Auction Galleries:</b> Walker Evans, <i>River Rouge Plant,</i> silver print, 1947. Sold for $57,500.
  • <b>Bonhams: September 25, New York</b>
    <b>Bonhams, June 12 results:</b> Ernst, Max. <i>Mr. Knife and Miss Fork</i>. Paris, 1932. DELUXE EDITION. Sold for $15,625
    <b>Bonhams, June 12 results:</b> Cage, John. Autograph musical leaf from his Concert for Piano and Orchestra, NY, 1958. Sold for $18,750
    <b>Bonhams, June 12 results:</b> Cage, John. Autograph musical leaf from his Concert for Piano and Orchestra, NY, 1958. Sold for $18,750
    <b>Bonhams: September 25, New York</b>
    <b>Bonhams, June 12 results:</b> Einstein, Albert. Signed Passport Photo for his US citizenship application. Bermuda, 1935. Sold for $17,500
    <b>Bonhams, June 12 results:</b> Verard, Antoine. Illuminated printed Book of Hours. Paris, 1507. Sold for $7,500
    <b>Bonhams, June 12 results:</b> Wetterkurzschlussel. German Weather Report Codebook - for Enigma use. Berlin, 1942. Sold for $225,000
    <b>Bonhams: September 25, New York</b>
    <b>Bonhams, June 12 results:</b> Morelos y Pavon, Jose Maria. Autograph letter signed to El Virrey Venegas, February 5, 1812. Sold for $6,250
    <b>Bonhams, June 12 results:</b> Milne, A.A. Complete set of <i>Winnie-the-Pooh</i> books. 4 volumes. All first issue points. London, 1924-1928. Sold for $5,250
    <b>Bonhams, June 12 results:</b> A 48-star American Flag, battle worn flown at Guadalcanal and Peleliu, 1942-1944. Sold for $35,000
    <b>Bonhams, June 12 results:</b> Locke, John. Autograph Letter Signed mourning the death of his friend, William Molyneaux, 2 pp, October 27, 1698. Sold for $20,000

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