(by Peter Hirtle)
By now, many of you will have heard that Google and the Association of American Publishers (AAP) have reached a settlement in the latter’s seven-year lawsuit against the former. The AAP’s press release is here; there are also good initial news stories at Publishers Weekly and Paid Content. The question is naturally, what impact might this settlement have on CUL?
At this stage, it is very difficult to say with certainty. Terms of the settlement are to be kept confidential. But from the hints in the press release, the answer would appear to be “not much.” Here is why:
- Unlike the Author’s Guild suit, which is still proceeding, the publisher’s suit was not a class action. That means the agreement is between Google and the five named publishers in the original action: McGraw-Hill; Pearson Education; Penguin Group (USA); John Wiley & Sons; and Simon & Schuster. No other publishers are affected.
- It would appear that these publishers have the option of asking that their books be included in Google’s indexing or be withdrawn from the indexing system. That has always been the case.
- It also appears that the publishers can continue to negotiate terms with Google that would allow Google to sell these books through Google Play. That has also always been the case.
- There is no indication that Google will offer a subscription product based on the works of these publishers.
- There is no reason to believe that Google will offer access to the full-text of books from any other publishers. For now, we have to assume that it will continue to offer indexing services only.
- The biggest unknown: if one of these publishers asks that a work be withdrawn from Google’s indexing system, must it also be withdrawn from HathiTrust? We shall see…
In short, at this stage, I don’t see this settlement as having much impact. It is positive in that it is a tacit admission from these publishers that Google’s scanning and indexing practices were not infringing. The likelihood that other publishers will want to pick up the ball and challenge Google on their own seems small. But the legality of Google’s scanning and indexing is still before the courts in both the Author Guild’s suit against Google (which is a class action) and the Author Guild’s suit against the HathiTrust and 5 universities (including Cornell). This is a small victory, but the war is still to be won.
DSPS will continue to monitor closely the ongoing legal struggles and will report periodically on what is happening.
UPDATE: 8 October 2012. More stories about the settlement have appeared, but nothing that would substantially change the assessment above. Perhaps the best overview is from talented Andrew Albanese at Publisher’s Weekly. I would only add three small qualifications to the post above:
- News reports indicate that one new benefit the publishers have received is that Google will give them copies of the books that Google has scanned. Peter Brantley has quite correctly questioned how valuable this “benefit” may be. The Google scans are probably not of a quality that would be useful to publishers. And the publishers may not have the rights to use the digital files if those rights belong to authors. Distribution of the digital files to publishers may even open the publishers to a lawsuit from the Author’s Guild, similar to the Guild’s suit against libraries for receiving copies of scanned books from Google.
- There is one news report that quotes a Google representative as saying that “the company ‘has very robust plans to increase analytics’ with publishers.” Whether this is part of the settlement or just part of Google’s business strategy is not clear.
- While the settlement was just with the publishers I listed above, an AAP spokesman has been quoted as saying that “The agreement pertains to all publishers that are members of the AAP, as well as some that are not.” What this means in practice is unclear since we don’t know what benefits, if any, the settlement provides to publishers. Perhaps all AAP members can request copies of digital scans of their books from Google.