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Google Books Settlement and Privacy

Top News

  • EPIC Launches "Fix Google Privacy" Campaign: In response to the recent announcement that Google has agreed to adopt a "Comprehensive Privacy Plan," EPIC has launched "Fix Google Privacy," a campaign to encourage Internet users to offer their suggestions to improve safeguards for Google's products and services. Submissions to EPIC will be forwarded to the Federal Trade Commission and considered by the agency as part of the final Privacy Plan. All comments must be sent before May 2, 2011. For more information, see EPIC - In Re Google Buzz and FTC - Analysis to Aid Public Comments. (Apr. 5, 2011)
  • EPIC Urges Court to Reject Google Books Settlement, Warns that Privacy Problems Cannot Be Fixed: In federal district court in New York, EPIC President Marc Rotenberg urged Judge Denny Chin to reject the revised settlement now before the court in Authors Guild v. Google. Mr. Rotenberg said that the settlement would "turn upside down" well established safeguards for reader privacy, including state privacy laws, library confidentiality obligations, and the development of techniques that minimize privacy intrusions. Mr. Rotenberg warned that the settlement would eviscerate legal safeguards for library patrons, commercialize access to information, consolidate Google's control of the Internet, and put in place an elaborate system of user authentication and watermarking. "A person at any library or any university in the United States that attempted to retrieve information from Google's digital library would be uniquely tagged and tracked. There is simply no precedent for the creation of such power." For more, see EPIC: Google Books and Privacy, EPIC: Google Books Litigation, and EPIC: Google Books: Policy Without Privacy, EPIC: Google Books Hearing Press Release. (Feb. 19, 2010)
  • EPIC to Defend Readers' Privacy at Google Books Hearing: On February 18, 2010, EPIC President Marc Rotenberg will appear in federal court in New York to represent readers' privacy and right to read anonymously. EPIC will urge Judge Chin to reject Google's deal with publishers, which requires readers to provide sensitive personal information to view digital books offered by Google, but fails to protect their privacy. EPIC previously moved to intervene in the case, observing that readers' interests are not represented, and warning that the settlement "threatens well-established standards that safeguard intellectual freedom," "imperils longstanding Constitutional rights," and "threatens to eviscerate state library privacy laws that safeguard library patrons in the United States." For more, see EPIC: Google Books and Privacy, EPIC: Google Books Litigation, and EPIC: Google Books: Policy Without Privacy. (Feb. 9, 2010)
  • Revised Google Books Settlement Fails to Fix Key Problems: Even after revisions, the Google Books Settlement still fails to address antitrust, privacy, and copyright concerns, according the the US Justice Department, privacy advocates, and academic authors.On February 4, the Justice Department filed a brief and issued a statement opposing the revised settlement. The Department said the revisions still ran afoul of authors' copyrights and did not fix antitrust problems. EPIC also continues to object to the settlement because it does not contain adequate privacy protections for readers. On February 4, EPIC informed the court of its intent to appear at the February 18 Fairness Hearing on behalf of users' privacy interests. For more information, see EPIC: Google Books and Privacy, EPIC: Google Books Litigation, and EPIC: Google Books: Policy Without Privacy. (Feb. 5, 2010)
  • Revised Google Books Settlement Announced, Privacy Problems Remain: The parties in the Google Books Settlement have filed an amended settlement. The Department of Justice, authors, EPIC and other privacy advocates criticized the original settlement. The revised settlement attempts to address price fixing and concerns about orphan works. However, the revised settlement does little to address privacy. Professor Pamela Samuelson stated “There are dozens of provisions in the settlement agreement that call for monitoring of what users do with books and essentially no privacy protections built into the settlement agreement.” For more information, see EPIC Google Books Settlement and Privacy, EPIC Google Books Litigation, and EPIC Google Books: Policy Without Privacy. (Nov. 17, 2009)
  • EPIC Moves to Intervene in Google Book Settlement, Cites Absence of Privacy Safeguards: Today, EPIC filed papers in federal district court on the proposed settlement between Google, authors, and publishers. The Google Books settlement would create a single digital library, operated by Google, but currently fails to limit Google's use of the personal information collected. EPIC stated that the settlement "mandates the collection of the most intimate personal information, threatens well-established standards that safeguard intellectual freedom, and imperils longstanding Constitutional rights, including the right to read anonymously." EPIC further warned that the Google Books deal "threatens to eviscerate state library privacy laws that safeguard library patrons in the United States." EPIC has previously participated as a "friend of the court" in many cases involving privacy issues. PRESS RELEASE - Media Call at 1 pm ET, Friday (9/4/09). For more information, see EPIC Google Books Settlement and Privacy. (Sep. 4, 2009)
  • Federal Trade Commission Issues Statements on Google Books Settlement and Privacy: With the Google Books Settlement now under consideration in federal court, FTC Chairman John Liebowitz today issued a statement, calling attention to privacy concerns and the vast amount of consumer information that could be collected. The Chairman expressed the Commission's commitment to evaluating the privacy issues presented by Google Books, a sentiment that was echoed by Commissioner Pamela Jones Harbour in her statement. In a separate letter, FTC Consumer Protection Director David C. Vladeck urged Google to address consumer privacy concerns and to limit the secondary use of user data. For more information, see EPIC Google Books Settlement and Privacy. (Sep. 4, 2009)
  • Privacy Opposition to Google Books Settlement Grows: Civil liberties organizations are urging Internet users to tell Google to adopt privacy protections for the Google Book Search. A judge in New York will determine later this year whether to approve the proposed settlement that would establish the service and give Google access to detailed personal information without any privacy safeguards. For more information, see EPIC Google Books Settlement and Privacy. (Jul. 23, 2009)

Introduction

In 2005, the Authors Guild filed a lawsuit against Google arising from the Google Books project. In October 2008, the parties announced a proposed settlement. Academics and rightsholders have criticized the Settlement terms on grounds ranging from antitrust to privacy. The Settlement sets forth non-privacy terms, including provisions regarding royalties and book advertising, in great detail. However, it does not contain meaningful privacy protections for readers or authors. Various entities and individuals have filed comments, objections, and amicus curiae briefs concerning the proposed settlement.

Background and Procedural Posture

This section briefly summarizes the nature of the entities addressed in the Settlement, the terms of the Settlement, critical dates, and procedural rules for filing interventions, objections, and amicus curiae to the Settlement.

A. Factual Background

The Google Books project began in 2004 as an online research tool and database to access the texts or large portions of the texts of millions of books. During this time, "Google announced that it had entered into agreements with several libraries to digitize books, including books protected by U.S. Copyright law, in those libraries' collections." In 2005, Google was sued by the Authors Guild, Pearson PLC's Penguin unit, McGraw-Hill Cos., John Wiley & Sons Inc. and CBS Corp.'s Simon & Schuster subsidiary. These parties sued, alleging that the project's digitization process was an infringement of their copyrights "on a massive scale." In response to this claim, "Google argued that its digitization of the books and display of snippets, or a few lines, of the book is permitted under the U.S. Copyright law's Doctrine of Fair Use." Rather than resolving the legal dispute over whether Google's digitization and display of the books was an action permissible under the Doctrine of Fair Use, the parties negotiated a settlement.

B. The Settlement: Procedure and Parties

The proposed Settlement arose after nearly two years of negotiations, and "lengthy investigations by both Google and the plaintiffs." The defendant in this Settlement is Google. The plaintiffs in this Settlement include a Class, consisting of "all persons and entities that as of January 5, 2009 own a U.S. copyright interest in one or more books or inserts that are 'implicated by a use' authorized by the settlement."

A "U.S. copyright interest" is defined as owning or having "an exclusive license in, a copyright protected by United States copyright law." A U.S. copyright interest also includes having the exclusive right to publish that Book in the United States or having the legal right to sue another for infringing rights in the Book. Additionally, "several persons may have U.S. copyright interests in the same Book, such as co-authors, an author and a publisher, and the heirs of an author."

A copyright interest that is "implicated by a use" authorized by the Settlement includes ownership rights to a work that wil be implicated by Google's use of the Book. An example would include "the reproduction or display of any content from a Book."

C. Settlement Entities

The Google Library Project refers to the sources from which Google has scanned Books and other works in libraries and other sources including through book drives, from rightsholders directly or elsewhere, for the purposes of digitizing them. (Settlement Agreement, Authors Guild v. Google, Inc., No. 1:2005cv08136 at §1.61). The Google Partner Program refers to the entities where "[p]ersons who have Copyright Interests in works contract with Google, (other than by operation of this Settlement Agreement) to grant to Google the right to include them into the final product." (§ 1.62). These two groups compiled construct what is considered the Google Book Search database. (§ 1.60).

The Book Rights Registry is a part of the Settlement established to act on behalf of rightsholders. (§ 6.1). The Registry will "own and maintain a rights information database for Books and Inserts and their authors and publishers" and will attempt to locate such rightsholders. The Registry will also receive payments from Google and "distribute those payments to Registered Rightsholders in accordance with the Settlement Agreement." The Registry is also responsible for resolving disputes between rightsholders and Google.

Consumer Purchase and Consumer Purchases, refer to "a service provided by Google that allows a user, for a fee, to access and view Online the full contents of a Display Book," which is explained below. (§ 1.32).

The Institutional Subscription refers to "any service of a limited duration provided by Google to an institution for a fee that allows Online access to and viewing of the full contents of the Institutional Subscription Database," which is explained below. (§ 1.74).

The Public Access Service refers to "a service provided by Google to each public library and each not-for-profit Higher Educational Institution that allows users to search and view the entire then-current Institutional Subscription Database," which is explained below. (§ 1.115)

D. Settlement Terms

The Settlement agreement itself allows Google to continue with its intended purpose by granting a license to Google. The license is between "Google, as owner of its digital files collection, and the rightholders and the [R]egistry which the [S]ettlement creates to act on behalf of the rightholders." By default the rightsholders have been "opted-in" to the Settlement, which licenses Google to have the right to these works for use. Rightholders who have "opted in" then become split between those that have registered themselves as rightholders through the Registry and affirmatively hold the right to claim payments, and those individuals who are not registered, or in many cases orphaned, and who cannot claim payments.

The Settlement terms include a one-time payout by Google of roughly $125 million dollars. (§ 2.1). Pending the Court hearing in October of 2009, the Settlement will mandate that Google share the revenues with the authors and publishers who have not opted out of the agreement and are registered rightsholders. The "Book Rights Registry will collect the payments, hold them for copyright owners, and serve as the interface between copyright owners and Google." (§ 6.2(b)). As far as the rightsholders entitlements, Google shall pay to the Registry, "seventy percent (70%) of all revenues earned by Google through uses of Books in Google Products and Services in the United States authorized under this Settlement Agreement, less ten percent (10%), for Google's operating costs, deducted from such revenues prior to such calculations." (§ 2.1(a)). Thus, the rightsholders will receive approximately sixty-three percent (63%) of all revenues earned by Google through uses of Books in Google Products and Services. It should be noted that registered rightsholders are still able to control what, if any, content of their books will be allowed to be shown by Google. (§ 3.5(b)). Under the terms of the Settlement, Google will then be released from liability, on a class-wide basis, for both the past and future scanning and searching it has and will partake in. (§ 10.2).

Those individuals who do choose to "opt out" of the Settlement by the Opt-Out Deadline are not bound by the Settlement. (§ 17.33). These individuals' works will not be a part of the Google Book Search database unless their owner negotiates a private contract with Google to do so.

There is more to the Settlement than just allowing Google to begin searching and scanning books. The Google Books Search will now be administered in three separate forms: Consumer Purchase, Institutional Subscriptions, and through a Public Access Service.

1. Consumer Purchase

Google will now be allowed to sell the books for consumers to purchase. (§ 4.2). These books will be available for purchase electronically, and given the terms of the Settlement, nearly 10 million books will be a part of this database. In regard to the revenue shares and purchasing process, copyright owners have been given the rights to specify their own prices, or delegate the pricing decisions through a system referred to as "Settlement Controlled Pricing." The Book Right Registry will act as an intermediary "passing pricing decisions to Google and payments to copyright owners." The pricing process is highly variable depending on the interaction between the Registry and Google in trying to balance both the ease of accessibility and gaining profit. (§ 4.1(a)(i)).

2. Institutional Subscription

A second part of the Settlement terms includes making access available through an institutional subscription option. These institutions include libraries, companies, colleges, and schools. As a part of subscribing, "subscribers will have full online access to most books in Google's scanned collection, and be able to print up to 20 pages at a time." (§ 5).

3. Public Access Service

A third component of the Settlement is that "Google may provide [] Public Access Service to each not-for-profit Higher Education and Public Library that so requests at no charge (and without any payment to the Rightsholders), through the Registry." (§ 4.8(a)(i)). This access includes "one computer terminal for every 10,000 Full-Time Equivalency (i.e., full-time equivalent students)" at four-year colleges, (and for every 4,000 full-time equivalent students at two-year colleges). (§ 4.8(a)(i)(1)-(2)). With regard to the access which is provided to each Public Library, the Settlement provides for "no more than one terminal per Library Building." (§ 4.8(a)(i)(3)).

E. Critical Dates

On October 28, 2008, the Authors Guild, the Association of American Publishers, and Google announced the Settlement. On November 17, 2008, Judge John E. Sprizzo granted a Preliminary Settlement Approval (hereinafter Preliminary Approval) after he "determined it to be within the range of approval."

Judge Sprizzo then set up the Notice Commence Date on January 5, 2009. Starting on this date, Class Counsel began sending the Notice of Settlement to Settlement class members. On or before January 12, 2009, the Class Counsel was to start publishing the Settlement's Summary Notice to a variety of publications. All of this notification was to be completed by February 27, 2009. The deadline for filing a claim for cash payment for Google's pre-Settlement scanning and digitization of books is January 5, 2010.

On April 28, 2009, Judge Denny Chin amended the Preliminary Approval Order to extend the "Opt-out" deadline from May 5, 2009 to September 4, 2009. The deadline for objectors and amici curiae has also been extended to September 4, 2009. The Court hearing will take place on October 7, 2009 at 10:00 a.m. "to determine: (a) whether the terms and conditions of the proposed Settlement Agreement are fair, reasonable, and adequate; (b) whether to certify the Class and the Sub-Classes for the purposes of the settlement; and (c) whether the proposed Settlement Agreement should be approved by the Court and judgment entered thereon."

Non-Party Submissions in the Google Books Litigation

No party has yet been granted a motion to intervene in the Google Books Settlement, though various class members have filed formal objections and many individuals have submitted commentary. Only the Institute for Information Law and Policy at New York Law School and Public Knowledge have requested and been granted permission to file amicus briefs. This section also reviews possible pending actions of the European Commission and the United States Department of Justice. Of all the filings, only the commentary from the Library Associations and Professor Pamela Samuelson address privacy risks raised by the Settlement.

A. Interventions

The Internet Archive, Seeking Leave to Intervene

The Internet Archive, Lewis Hyde, Harry Lewis, and the Open Access Trust separately filed letters requesting pre-motion conferences, which the court deemed as motions to intervene and subsequently denied as to all movants. Lewis Hyde, Harry Lewis, and the Open Access Trust have appealed this ruling, and plan to file an actual motion to intervene.

B. Objections

1. Jenny Darling & Associates, Objecting

Australian literary agents, Jenny Darling & Associates (JDA), filed an objection to the Settlement, discussing issues related to international copyright rights. The objection concerns works of Australian authors that are unavailable in the United States commercial market and are "therefore classified as 'Out of Print' - but will be included in the Settlement." JDA argues that the only legal method to "exploit electronic rights" is through "individual agreements with the rightsholder[s]" and questions why the Settlement has not seemed to treat international authors "with the same respect as American authors." JDA also argues, in short, that the Settlement is anti-competitive and is inherently flawed in two ways: it does not take into account book contracts that reserve electronic rights to the author and it fails to acknowledge the views of professional organizations outside of the United States or of parties who opt out of the settlement and are therefore no longer a member of the class. JDA concludes with a plea for the court to find the Settlement both "unjust and unreasonable."

2. Robert M. Kunstadt, Objecting

Attorney Robert M. Kunstadt filed an objection to the Settlement based on procedural grounds, and on copyright and equity arguments. Kunstadt buffers his credentials with the fact that he has authored award-winning papers on copyright law, which have been made available in large part through the Google Books server. In this regard, Kunstadt argues that the Settlement is, basically, an amendment to the existing U.S. copyright law that confers "non-statutory formalities" on authors in order for them to protect their work. Essentially Kunstadt argues that an opt-out policy is the only legal alternative for the Settlement, and pleas for the court to criminally punish Google for what he views as a "willful copyright infringement."

3. Barbara Ann Porte, Objecting

Barbara Ann Porte, a member of the author class, filed a letter objecting to and commenting on several portions of the Settlement. She argues that it is "totally backward [and] . . . unfair" for a rights-holder to have to initiate contact with Google to inform it of the rights she wishes to withhold when "it should be incumbent on the non-rightsholder . . . first to obtain permission from the rightsholder." Additionally, she asserts that the Settlement's procedures for dealing with disputes between authors, publishers, and Google are extremely unlikely to prove satisfactory or timely. Porte believes that, given Google's past disregard for copyright law and the minimal consequences for noncompliance, Google is unlikely to continue making required payments to authors and that, if Google finds that its economic model does not work, it may eventually charge authors "for the privilege of being included." Finally, she argues that rights-holders had insufficient time between the announcement of the Settlement and the deadline for opting out or registering objections to allow appropriate consideration of the options. Porte asks that Congress or the courts revisit copyright law, especially given the changes in technology since it was last revised, "rather than allowing the actions of one or a few giant, on-line, unregulated businesses to bring about fundamental changes in this stepdown fashion."

C. Amicus Curiae

1. The Institute for Information Law and Policy at New York Law School, as Amicus Curiae

The Institute for Information Law and Policy at New York Law School (IILP) filed a letter requesting permission to appear as amicus curiae to the Settlement in support of no specific party to the case. The request concerned a desire to highlight specific issues involved with orphan works, in relation to the Settlement. Specifically, IILP explained that the inclusion of orphan works in the Settlement would "threaten the public interest" by providing Google with "exclusive access to a large portion of the market for electronic versions of books." The letter argues that this exclusivity would also affect the "free speech interest in private reading" by granting Google an opportunity to "impose unfair and overreaching terms on libraries and readers." IILP refers to various concerns of anti-competitive behavior and class certification involved with access to orphan works. The Court granted IILP amicus standing on April 1, 2009 with the final brief due by the September 4, 2009 deadline.

2. Public Knowledge, as Amicus Curiae

Public Knowledge submitted a letter to the Court, requesting permission to file a brief as amicus curiae to the Settlement. Public Knowledge primarily seeks to comment on the topic of orphan works and the separate challenges they pose in relation to the Settlement. Public Knowledge expresses the opinion that the Settlement grants Google a "unique access to license and use orphan works," raising anti-competition concerns as well as standing concerns in relation to the certification of the Plaintiff Class. Public Knowledge expressed interest in addressing the question of whether the advantage granted to Google in the settlement would result in the inability of other companies to achieve similar licensing arrangements. Permission to file such a brief was granted on April 30, 2009 in accordance with all requirements and deadlines.

D. Letters and Comments

1. The Library Associations, Commenting

The American Library Association (ALA), the Association of College and Research Libraries (ACRL), and the Association of Research Libraries (ARL) - collectively, the Library Associations - filed comments on the Settlement. They do not oppose the Settlement, but want to ensure that the court exercises rigorous oversight over its interpretation and implementation. Their concerns fall into five major areas:

  1. The Library Associations argue that, lacking meaningful competition, Google and the Book Rights Registry ("BRR") can set subscription prices at a profit maximizing point that many institutions may not be able to afford, and, further, that Google could shift from a business model based on ad revenue-and thus focused on maximizing the number of users-to one based on profit maximization-and thus potentially focused on charging higher prices from fewer users (as is currently the case for many scientific, technical, and medical journals, a single subscription to which can cost up to $20,000 annually). Additionally, the Library Associations note that the Settlement lacks a mechanism for dispute resolution regarding pricing.
  2. The Library Associations argue that the Settlement might also deepen digital divide. First, they argue that the inequity resulting from pricing out certain institutions will be compounded by differential pricing models for different categories of institutions. For example, higher education institutions might have a higher demand for institutional subscriptions than do K-12 schools, thus potentially driving the price beyond the ability of certain higher education institutions to pay. Additionally, the Library Associations assert that, while the provision of a single public access service terminal may be sufficient for less-used libraries, it will be insufficient for many, especially colleges that cannot afford an institutional subscription.
  3. The Library Associations argue that the Settlement fails to protect user privacy. Currently, forty-eight states and the District of Columbia have statutes that protect library records from disclosure without a general subpoena or court order, but the Settlement does not address how Google/BRR will protect user privacy. The Settlement contains no information on what information Google will retain about the user, how it will use that information, and how it will protect that information's security. The Library Associations note that this silence starkly contrasts with the Settlement's detailed framework and responsibilities for protecting security of digitized copies of books. Google will keep user records to permit perpetual online access to purchased books, and institutional users' printouts will have visible watermark displaying encrypted session information that can identify the user and access point. The Library Associations note that, while competitive pressures typically force online retailers, email providers, social networks, and ISPs to maintain at least a minimal level of privacy protection, no such pressures will exist here. The Library Associations ask that Google/BRR develop strong policies to protect personally identifiable information and provide clear notice to users describing these policies.
  4. The Library Associations argue that the Settlement may compromise intellectual freedom in several ways. First, they note that the fear of third party monitoring of reading and searching activity could have a chilling effect on the exercise of the right to read. Second, they argue that Google's right to exclude, for editorial or non-editorial reasons, 15% of in-copyright, not commercially available books combined with pressures from state, local, and foreign governments and interest groups may cause Google to suppress access to particular categories of books. The Library Associations argue that such suppression is far more wide-reaching than when a single librarian makes a similar decision, because here, access will be denied throughout entire country and not just in that particular community. Finally, they argue that a Research Corpus host site could privilege some lines of inquiry and hamper others in the exercise of its authority to restrict access to the Corpus if it determines that the person requesting access is not a qualified user or his research is not non-consumptive. Additionally, the Settlement provides no mechanism for challenging such a rejection.
  5. The Library Associations argue that the Settlement could frustrate innovation because the BRR can prevent the development of competitive services. The Settlement permits-but does not require-it to license its rights to third parties, and it does not provide standards that would govern the terms of licensing. The Library Associations assert that the goal of the BRR-to maximize profits-conflicts with the goal of many class members-to maximize public access-and the BRR's board may not reflect this diversity of perspectives.

The Library Associations ask the court to vigorously exercise its authority to regulate the parties' conduct under the Settlement in several key areas, including pricing of institutional subscriptions, review of BRR's refusals to license copyrights on the same terms available to Google, review of the procedures for selecting members of BRR's board of directors, directing Google to provide lists of excluded books and the reasons for exclusion, review of a Research Corpus host site's refusal to allow certain projects, and directing Google and the BRR to disclose their privacy policies and review of their compliance with those policies.

2. Professor Pamela Samuelson, Commenting

University of California at Berkeley Professor, Pamela Samuelson filed a letter with the court raising seven issues involved with the Settlement in relation to protection of the works of scholarly authors and requesting an extension of the deadline for comments. In summary, her concerns are:

  1. "An authors guild or AAP-dominated [BRR] will have an institutional bias against helping academic authors who might want to put their books in the public domain or make them available under Creative Commons Licenses."
  2. "The BRR will be able to gather detailed information about the type and extent of academic research . . . inconsistent with norms and sound practices within academic communities."
  3. Professor Samuelson discusses the possible ways that Google and the BRR could or could not use digital rights management (DRM) to impede academic research, including only allowing individuals who have purchased books from Google to access those books "in the cloud," or to download them in Adobe PDF format, which can be "wrapped in copy protection," limiting use and circulation and possibly inhibiting scholarly citation.
  4. The Settlement lacks specificity regarding whether BRR is required to indicate the copyright status of the books in its database, including whether or not the books are classified as "orphan works." Professor Samuelson explains that this information may be important to academic researchers in many different facets of their work.
  5. Though the BRR panel will be made up of both authors and publishers, Professor Samuelson expresses concern "that the author representatives will be drawn from the Author's Guild's membership" and will not include representation for academic authors, who represent a small minority of Author's Guild members.
  6. The Settlement limits annotation sharing to a number of 25 other persons, who must also purchase the book. This would impede the "time-honored form of scholarship, which the annotator may wish to share with a large community for criticism and further comment, but not for monetary profit."
  7. In regards to copyright reversion rights and terminations of transfers, it is unclear if "the BRR will be helpful or cooperative" with authors' efforts to move works into the public domain or make them available under Creative Commons licenses.
    Professor Samuelson ends her letter with a request to extend the deadline for comments to early November in order to provide academic authors an adequate period to review the (more than) 300-page Settlement and compose a "reasoned commentary" of the topics at issue.

3. The Spectrum Literary Agency, Commenting

The Spectrum Literary Agency (SLA) filed a letter on behalf of its authors and proprietors of estates opting out of the Settlement, and arguing against "Google's willful misinterpretation of 'fair use' in copyright law to mask outright piracy." SLA notes that the one-size-fits-all opt-out forms will lead to error because the author may have different sets of rights for foreign, electronic, and domestic uses, and Google's plan, if worldwide, would require separate negotiations of electronic and print rights in each territory or language. The Agency asks that the court not sanction or permit Google's attempt to redefine copyright.

4. The Australian Society of Authors, Commenting

The Australian Society of Authors (ASA) filed a submission to the Fairness Hearing raising several concerns about and objections to the Settlement. ASA argues that the agreement lacks transparency because few non-legal readers will understand the dense legal language. The ASA believes that the exclusion of illustrations other than those of the principle rights-holder is arbitrary and unfair because art- and picture-based books would be excluded if for adults and included if for children. Additionally, the ASA argues that the world-wide monopoly the Settlement creates raises the risk of unbearably high pricing resulting from Google's ability to block another provider from obtaining an equivalent license, and the goal of reaching as many customers as possible is an inadequate safeguard. They also note that, although the Authors Guild and US publishers agreed to the amount of the author payments, this amount is not necessarily acceptable elsewhere, and some authors find the amount insultingly low. Finally, ASA believes that Google's ability to exclude books for editorial or non-editorial reasons raises the possibility of censorship of certain views, made worse by the fact that Google is not required to disclose the reason when it is non-editorial or confidential. The ASA supports proposals that (1) the BRR include directors who will represent the public interest and libraries' interests; and (2) remove the requirement that the BRR cannot offer more favorable terms to another company.

5. Unaffiliated Individuals, Commenting

Five individuals, including both authors and scholars, have submitted to the court various short letters in comment on the Settlement:

  1. Author Hope Ryden submitted a letter to the court, objecting to language in the Settlement that designates her photographic illustrations in her children's books as "inserts," thereby allowing anyone to use the images. Ryden submits that the photographs were taken with great effort on her part and pleas with the court to require the parties to amend the Settlement to remedy this issue.
  2. Author Lee Killough filed a letter with the court requesting the Settlement to include a provision providing authors with complimentary copies of their own works.
  3. Author John Moore filed an objection to the Settlement, requesting the parties to re-negotiate in the form of an "opt-in" agreement. He claims that the present Settlement is contrary to copyright law by requiring the artist to "enter a contractual agreement with a private corporation."
  4. German author, Dr. Else Maria Wischermann, filed a letter with the court in protest of the Settlement. The letter was submitted in German and no translation was provided or has been offered.
  5. Dr. Michael Noll filed an objection to the Settlement, in which he argued that a copy of one of his "works of art" was included in the Google Books database with a copy of an academic journal to which it was attached to as a figure. Dr. Noll argues that this use is a violation of his copyright rights in his work.

E. Possible Investigations

1. United States Department of Justice, Investigating

The New York Times and other media report that the United States Department of Justice (DOJ) "has begun an inquiry into the antitrust implications of Google's settlement with authors and publishers." Prior to the announcement DOJ participated in talks with various groups opposed to the settlement, and have since notified the parties to the litigation that they would be "looking into various antitrust issues related to the far-reaching agreement." At the time of the DOJ announcement there was no comment from DOJ or any party in regards to the inquiry, and little has been reported on the topic since. However, Google has gone on the record with the statement that "the agreement is nonexclusive and 'structured in a manner to encourage competition.'" Sources indicate that "the inquiry does not necessarily mean that the department will oppose the settlement."

2. European Commission, Investigating

In response to an Information Note filed by the German delegation to the Council of the European Union, and with the support of almost all member countries, the European Commission has announced plans to investigate the Settlement, citing possible infringements of EU copyright law. The German delegation argues that Google's interpretation of the fair use doctrine is "irreconcilable with the principles of European copyright law," which requires the rights-holder's consent prior to reproducing or making publicly available their work. The German delegation supports EC involvement because the class action mechanism would bind European authors and companies, and thus the EU would be directly affected by the Settlement. Additionally, the German delegation notes that the Settlement raises concerns about concentration of media ownership, and disadvantages the EU's own digitizing initiatives because the latter only digitizes work after obtaining consent from the rights-holders. The German delegation requested that that the Commission investigate the impact of the Settlement "from the point of view of copyright law, law on restrictive practices and cultural policy, and, where appropriate, to introduce new measures to protect rights holders." At present, however, the investigation will focus only on the copyright issues, but the investigation may be expanded to cover the potential anti-competitive effect of the Settlement as well.

Academic Commentary

A. Introduction

Since at least mid-2008, scholarly reactions to the Settlement have developed and proliferated. While many scholars support the concept of electronic access to books as a fast and efficient means of providing information and literature to individuals on a global scale, many also recognize areas of the Settlement that could be improved. The areas of copyright protections, privacy rights, antitrust and collusion, and representativeness of class, are frequently raised as legal concerns. This section sets forth summaries of the major academic reactions and some journalistic reactions to the Settlement.

B. Scholarly Reactions to the Settlement

1. Robert Darnton Considers Copyright, Monopoly, and the Democratization of Information

Professor Robert Darnton is a scholar on "the history of the book." At Harvard University, he is a named professor of Modern History and the Director of the Harvard University Library. In a series of articles written for the New York Review of Books, he discusses his primary concerns of the Settlement, namely the possibility of price-gouging and the democratization (as opposed to the commercialization) of information.

In an article that changed the conversation surrounding the Settlement, "Google & the Future of Books," Darnton points out that the settlement is too complex to clearly suggest all potential implications. He emphasizes the importance of sharing ideas through the reading and writing of thoughts, but also realizes that privilege (wealth, access to printing guild, etc.) has always affected the individual's ability to take part in the "republic of letters." The ability to communicate is the result of "money and power." Copyright is to be given only for a limited duration and to promote the progress of science and the useful arts - suggesting, Darnton says, that copyright principles place the public good before an author's profits. But copyright protections have grown substantially in duration and developed into "the cultural industries." As information becomes commoditized, The Journal of Comparative Neurology now costs $25,910 for a year's subscription.

With electronic media and the concurrent academic rethinking of departmental interconnections, the "Republic of Letters" has become "the Republic of Learning" as amateur organizations (Wikipedia, Open Knowledge Commons, Open Content Alliance, etc.) provide information free of charge. Businesses (such as Google) see libraries as repositories of assets, rather than "temples of learning." There is a fundamental contradiction between corporate financial return for shareholders and the public interest in learning "Free To All." "To digitize collections and sell the product in ways that fail to guarantee wide access would … turn the Internet into an instrument for privatizing knowledge that belongs in the public sphere." The corporate competition on the internet is leading to an oligopoly, and no matter who wins, a monopoly would mean a defeat for the public good. The internet and the creators of its content must "democratize" as well as "digitize." Google has not set out to create a monopoly, but the class action character of the settlement prevents competition. Based on its record, Google is not likely to abuse its monopolistic power in this case, but the risk remains, especially if the current owners sell the company. The settlement does not prevent Google from abusing its power position in any way.

In an article published eight months earlier, "The Library in the New Age," Darnton originally supported the theory of Google Books and supported the project as making works widely available on a worldwide scale that is vastly easier to research, while reinforcing the importance of brick and mortar libraries as keepers of ancient, rare, and non-digitized books as well as holders of multiple editions of works that must be scrutinized.

In "Google, Robert Darnton, and the Digital Republic of Letters" Paul Courant of the University of Michigan (see below) rebut's Darnton's idea that Congress could have or would have made orphan works available to the public. Google was the first organization with the interest and infrastructure to digitize nearly all works. He argues that Google has no monopoly on information or even access to information, as all of the digitized works are available in hard copy through the national library system. He points out that the production of scholarship requires reliable and immediate access to literature. He also points out that Google's standard business model is one of providing free access to information and making selling advertizing (indirect rather than direct sales).

2. Pamela Samuelson Considers the Monetization of Orphan Works and the Representativeness of the Certified Class

Professor Pamela Samuelson teaches law and studies intellectual property law at the University of California at Berkeley, where she is also Co-Director of the Berkeley Center for Law and Technology. Her article "Legally Speaking: The Dead Souls of the Google Booksearch Settlement," due to appear in Communications of the ACM in July 2009, lays out copyright concerns regarding orphan works, monopoly concerns, and the failure to represent all interested parties.

In her most widely circulated paper on the topic, "Legally Speaking: The Dead Souls of the Google Booksearch Settlement," Samuelson argues that "the proposed settlement of this lawsuit is a privately negotiated compulsory license primarily designed to monetize millions of orphan works. . . ." which will benefit Google as well as some authors and publishers, but may not truly represent the interests of all authors and publishers.

Google will gain a de facto monopoly on the "largest digital library of books in the world," and the only way for other potential providers to compete would be to begin scanning books and hope for a similar lawsuit with a similar settlement. To make orphan works more widely available is, generally, a desirable goal, yet considerable copyright concerns remain.

Additional concerns remain regarding the representativeness of the certified class. The owners of copyright in, or authors of, orphan works may well prefer books to enter the public domain or have availability under Creative Commons license, but the BRR and Google will have no reason to pursue this option. Therefore the parties to this settlement cannot adequately represent such interests.

In a letter to Judge Denny Chin commenting on the Settlement, Samuelson writes on behalf of a collection of scholarly writers, arguing the Settlement does not adequately protect their interests as academic authors. The authors are also concerned that the settlement will create a monopoly situation where prices and restrictions may become barriers to access in the future, that there has been insufficient engagement with academic authors, and there is widespread ignorance in relation to the settlement and its implications for scholars. It is suggested that the deadline to opt out be extended by 6 months to allow for the education of the community.

The authors highlighted specific areas of concern:

  1. Open Access Policies. It is feared the BRR will have an institutional bias against helping academic authors who may not want to put their books in the public domain or use Creative Commons licenses.
  2. Monitoring Academic Uses: There is concern over Goggle and the BRR's ability to monitor scholarly uses of books under the settlement. There are questionable requirements that force researchers to provide information relating to their use of the service.
  3. Digital Rights Management: It appears from the provisions in the settlement that there will be restrictions on some uses of books that scholars have purchased.
  4. Transparency of the BRR: Concern over transparency relating to the status of the books (whether they are in or out or copyright, who the publishers are, etc).
  5. Representation of Academic Author Interests in the BRR: While the BRR will have equal representation in terms of publishers and authors, there is a concern that there will not be adequate representation of academic authors.
  6. Limits on Book Annotations: There are considerable restrictions placed on annotations and the distribution of annotated works, which academics see as over restrictive and debilitating.
  7. Interaction with Publishing Contracts: It is unclear how the BRR will handle contractual alterations and agreements between authors and publishers.

3. James Grimmelmann Considers Fair Use, Privacy, Monopoly, and Price-fixing

James Grimmelmann is Associate Professor at New York Law School and a member of its Institute for Information Law and Policy. He is heading the New York Law School research relating to the Google book settlement and has written two articles on the topic, as well as numerous blog postings.

Grimmelmann highlights Google's "fair use" argument. He notes that many scholars were in favor of the settlement due to the public benefit of the index, identifying many of the positive aspects of the settlement. Grimmelmann on privacy: "Google's book access programs…will be capable of tracking millions of users…[t]hats a horrifying prospect for librarians who fought the Patriot Act's patron-records provisions."

The Settlement is almost completely silent on privacy issues. Grimmelmann states that the settlement is "worse than silent…[t]he settlement actually requires that these libraries report all scholarly and classroom uses of their digital copies." "Personal information on a hundred readers is a privacy worry; personal information on a hundred million readers is a privacy dystopia."

The primary negative aspects of the Settlement as highlighted by Grimmelmann are as follows: the monopoly situation that would be created, libraries would be at Google's mercy, libraries would be placed under pressure due to costly nature of books and upkeep. Grimmilmanns key worry is that power will be centralized, and Google will be placed in an unacceptably powerful position. The article focuses on orphaned works and the issues surrounding them. Grimmelmann states that the handling of orphaned works under the Settlement benefits neither the copyright owner nor the public in the majority of situations. The works are not free for public access and the copyright owner does not benefit financially unless they come forward, which is unlikely in the vast majority of cases.

The article criticizes the fact that the settlement is a Google only deal and many other companies who have similar interests remain open to attack for copyright violation. There is no incentive for publishers to negotiate another deal as it would drive down the price of books. Grimmelmann states that the Settlement "creates a remarkably effective barrier to entry." He also identifies orphaned works as a legislative issue which should not be dealt with through a settlement, stating that if the settlement is allowed to stand without question, it will set a terrible precedent for the future."

Grimmelmann highlights three areas that need to be substantially reformed: the agreement needs to be genuinely non-exclusive, the BRR needs to be recognized as a collecting society, and the terms and conditions need to be reviewed and bolstered. Grimmelmann approves of the general principles of the Settlement, but believes that it is need of reform, he concludes that the Settlement "serves respectable ends through questionable means."

In "How to Fix the Google Book Search Settlement," Grimmelmann approves of the settlement which he says will be "immensely good for society." He provides 3 reasons why the settlement should be accepted; there's no guarantee that Google would have won on the fair use issue, it is Google's call, not the publics, as to whether to engage in a fair use debate, and there is no way to force the court to consider the issue of fair use. Grimmelmann addresses 5 principles separately:

  1. The BRR poses an antitrust threat Solutions suggested: Grimmelmann states that there should be an antitrust consent decree forbidding anti-competitive practices. There should be nondiscrimination between copyright owners (non-party/future copyright owners should not be offered different deals). There should be meaningful library and reader representation at the BRR.
  2. Google poses an antitrust threat: If a company wants to enter the market in the future there is no guarantee that the plaintiffs (publishers, authors) would agree to organize themselves in order to agree to a class settlement as they did with Google. Grimmelmann suggests that the court should: Strike out the no most-favored-nation clause (more favorable agreements between the BRR and other companies are prohibited by the Settlement). Competitors should be offered the same deal as Google (or any subset of the services). The BRR should be awarded authority to negotiate with Google competitors. Googles collection of public-domain books should be available to other search engines.
  3. Consumers need protection. Grimmelmann contends that there should be no price discrimination, that is, different readers should not be charged different prices for the same book, and this should be explicitly included in the settlement. Reasonable Terms and Conditions are also necessary. In relation to Privacy, Grimmelmann states "There's a real concern that Google could identify and track readers, page by page, minute by minute." He continues, "The only explicit privacy protections in the settlement, though, are about keeping private the information that the BRR has about copyright owners. That's insufficient. The settlement should contain explicit privacy guarantees that user information and reading habits should be monitored only to the minimal extent necessary for billing, auditing, and security; that no such data be used for any other purpose, that all such data be promptly destroyed when no longer needed; that Google not reveal any information about any user or users' reading habits to any other entity, including the BRR; and that Google be legally responsible for any security breaches resulting in third-party access to reader information."
  4. Public Goods should be widely available. Grimmelmann contends that the bibliographic databases which Google will have to create are all public goods, which will be useful to readers and researchers. He believes these databases should be open to broad public access, and where there are privacy issues concerning author details, pseudonyms and proxies are reasonable solutions.
  5. Accountability and transparency matter. Grimmelmann contends that there should be no secret censorship. He states that where a book is excluded for editorial reasons the copyright holder and the public should be informed, and where a book is excluded for non-editorial reasons the reasons should be clear and precise. Google should provide a reporting and amending procedure for poorly scanned documents. Also any institution that wishes to partake should be allowed to provide its books to be scanned or to scan them themselves.

In "Grimmelmann and Vaidhyanathan Talk Google Book Settlement at Georgetown University," Grimmelmann describes the settlement as an "elegant solution" and it is the best agreement that can be hoped for. He again raised the issue of privacy stating that "Google can track what you read." He questions the process that led to the settlement stating, "the courtroom is not the place to decide the interests of a million-member class of people." He continues to conclude that the settlement is a net good for society.

Vaidhyanathan contended that had the Supreme Court heard the case, Google might well have lost on the fair use issue, highligting the fact that the Supreme Court is non-experimental in nature. Similar to Grimmelmann, Vaidhyanathan contended that it is not healthy to rely on the courts to create policy.

Vaidhyanathan also raises the question as to whether libraries are being taken advantage of: they are contributing to corporate welfare in exchange for inferior copies. He also puts forward that libraries have long been places free from commercial interference and temptation. He also outlines similar privacy concerns to Grimmelmann, describing Google as a "personal information vacuum."

4. Randal C. Picker Considers Copyright Law and the Application of Private Contracts that Substantively Affect Copyright Doctrine

Professor Randal C. Picker teaches antitrust, intellectual property, and secured transactions at the University of Chicago Law School. His article, "The Google Book Search Settlement: A New Orphan-Works Monoply?" was published as a Working Paper in April 2009. It lays out Picker's primary concerns of antitrust and competition policy issues.

In "A New Orphan-Works Monoply?" Picker argues that the license created by the settlement agreement should be expanded to mitigate the market power that the settlement creates because the class action nature of the lawsuit means that Google is no longer dealing in purely private contracts. The settlement gives access to orphan works only to Google, meaning it creates rights for Google - it gives the company a 100% marketshare. Without the lawsuit, Google would have no rights whatsoever.

The court retains jurisdiction over the settlement going forward - this jurisdiction should include opportunity for other organizations to come to court and seek licenses. Rather than a fairness hearing, there should be an antitrust hearing, or at least notice that the agreement provides no protection from antitrust inquiries.

A Most Favored Nation clause protects Google in case a more beneficial agreement is found between the BRR and another digital library. This will discourage further similar deals. Private contracts could have allowed Google to create something comparable to GBS, but the numbers would certainly have been smaller, and they could not have given Google access to the orphan works. Two solutions exist: alter the settlement agreement to add additional licenses; or, ensure a mechanism for creating new licenses going forward.

5. Siva Vaidhyanathan Considers the Self-privatization of Libraries and Copyright Infringement

Siva Vaidhyanathan is currently an associate professor of media studies and law at the University of Virginia. Vaidhyanathan a cultural historian and media scholar, and has written several blogs in relation to the Google Settlement, with a particular emphasis on the privitization of libraries.

Prior to discussing the alleged privatization of libraries Vaidhyanathan highlights that Google is not the problem, that they are acting in their own best interests, as a private company should. Vaidhyanathan has an issue with the libraries' behavior, such as the fact that they have provided millions of dollars worth of collections for no clear return. He contends that the libraries are committing self-privatization, and that this system only profits Google. The manner in which Google "pays" for the content, by providing copies of the books, is described as illegal by Vaidhyanathan. He states that "there is an unsettled copyright infringement issue: Google is transferring copies as payment for a commercial transaction. Nothing in Sec. 107 or 108 or any case relying on these sections grants a right to make copies of copyrighted works and transfer them as payment." He also contends that there is nothing in the settlement to protect universities from being sued if the publishers are unhappy with their use of the content.

Vaidhyanathan raises concerns as to the future of the agreement. He highlights the fact that libraries will have reduced resources if Google implements restrictions or increases charges. This situation is contrary to the values of libraries which he lists as, "free and open access; user privacy and confidentiality; preservation; a public space free of commercial influence." Vaidhyanathan also identifies the possibility of Google going out of business, or deciding to drop the Google books initiative in the future. This possible situation raises concerns as to the security of the content. Vaidhyanathan believes the copyright issues should be addressed through legislation and not through the courts via this settlement.

6. Frank Pasquale Considers Anti-Competitive Features and the Inequities of Tiered Access

Professor Pasquale is a Loftus Professor of Law at Seton University, where he teaches Administrative Law, Intellectual Property Law, Health Care Finance, and a seminar entitled Technology, Human Rights, and Equality. He regularly writes blogs on concurringopinions.com, madisonian.net, and balkin.blogspot.com.

Pasquale recently discussed the Settlement in his blog post entitled, "Beyond Competition: Preparing for a Google Book Search Monopoly." While Pasquale recognizes the positive implications of a large online digital archive, he expresses concern of allocating responsibility for such an endeavor to a private company. He contends that "only the most na夫e optimist could ignore the perils of having one company, driven first and foremost by a profit motive, effectively in charge of the most comprehensive collection of the world's scientific and cultural heritage."

Pasquale recognizes that such a resource would be a vast improvement on the current situation, where many publications are difficult to access, but believes that with such a project "[p]rivacy problems are endemic." He also highlights problems with a system that allows tiered access, that is, differing levels of information are available for subscribers who pay for different services, contending that this system would "reinforce existing inequalities in access to knowledge, and life chances." Pasquale believes that such agreement should be subject to public scrutiny as it essentially allows a private party to determine access and pricing relating to a public function.

Pasquale cites Siva Vaidhyanathan in concluding that the Settlement should be viewed as a "private triumph, and a public failure." He believes that a national copyright policy is necessary to regulate this field and allow for both the government and competitors to enter the market alongside Google.

C. Journalistic Reactions to the Settlement

1. Miguel Helft

Miguel Helft is a business reporter covering internet companies for The New York Times. He also blogs on the same topic.

In "Google's Plan for Out-of-Print Books is Challenged," Helft calls Google potentially "a new legal guardian." He references concerns that Google will gain "virtually exclusive rights" to publish the orphan books, which potentially make up the majority of major library collections, online. Without access to the orphan works, competitors cannot compile such comprehensive online libraries, and therefore Google can charge high prices for access to its database. Scholars, according to this article, seem to agree that the public will benefit, but think that other organizations should also have rights to orphan works and that the private deal amounts to a private re-writing of copyright law. The settlement expands Google's rights regarding all books, not just orphans. Even the Authors Guild has said (through lead lawyer Michael J. Boni) that "Google will always have the advantage of having access to 100 percent of the orphan works."

In "Opposition to Google Books Settlement Jells," Helft provides a brief synopsis of the monopoly (antitrust) and copyright concerns about the agreement. The Internet Archive had filed a motion to intervene, arguing that the agreement gives google sole immunity from copyright infringement liability. (NOTE: The Internet Archive's motion was subsequently rejected). Helft references Randall C. Picker (University of Chicago - see below) and his concerns of a potential monopoly on orphan works and pricing coordination in violation of antitrust law. He also references Samuelson's concern that the settlement prevents authors of orphan books from granting full access to their works through less restrictive licensing.

In "Google Rivals Will Oppose Book Settlement," Helft discusses Amazon, Microsoft, and Yahoo's plans to join a coalition of groups who are actively opposing the settlement. This coalition, called the Open Book Alliance, is represented by Gary L. Reback, an antitrust lawyer in silicon valley. In this article, Helft quotes Reback, who states that the "deal has enormous, far-reaching anticompetitive consequences that people are just beginning to wake up to." The article intimates that other library associations may soon be joining the coalition as well. Nevertheless, Helft notes that the parties in the settlement believe that it is a huge public good, and that the settlement is non-exclusive and will allow other companies to secure deals similar to the one Google obtained under the settlement.

2. Paul Courant

Paul Courant is a professor of Public Policy, Economics, and Information at the University of Michigan. He is also the University Librarian and the Dean of Libraries, as well as Faculty Associate in the Institute for Social Research at the University. His blog, "Au Courant" is a self-described "blog about libraries, economics, public policy, and other stuff."

"The Google Settlement - From the Universal Library to the Universal Bookstore" is one of the first investigative reactions to the settlement, and thus it is much less detailed in analysis than many other commentaries. Courant observes favorably that the Settlement will lead to wide dissemination of works as long as the cost of use is not prohibitive. Jim Carlile responds, in his first consideration of the agreement, observing that GBS will only allow online access, Google might not continue allowing full downloads of public domain works, the host libraries will not see any money from the deal, and that the only "free use" available is a limited number of computer terminals. He theorizes that such terms are inadequate for scholarly purposes. He is also concerned that charges for orphaned works are distributed among authors and publishers in the guild.

3. Brewster Kahle

Brewster Kahle of the Internet Archive, writing in the Washington Post, does not support the settlement, contending that it will create a monopoly, he states that Google will essentially be privatizing our libraries. Kahle describes broad access as the greatest promise of our digital age, and he continues to suggest that this settlement is a danger to principles such as free speech and open access to knowledge. Kahle states that private instances involving monopolies have led to a stemming of competition and innovation. Kahle does not think the settlement should be approved, instead he feels that legislation should be employed to deal with works in copyright limbo.

How the Google Books Settlement Addresses Privacy

A. Introduction

The Settlement rarely addresses privacy explicitly. This is particularly notable given the great detail used to specify the Settlement's non-privacy terms. The Settlement creates a framework that gives Google access to substantial personal information concerning book buyers, library patrons, and rightsholders. The Settlement places no meaningful restrictions on the company's use of the data.

B. The Settlement Rarely Addresses Privacy Explicitly

The Google Book Search Settlement, as a general rule, fails to explicitly address privacy. The only reference to privacy in the entire settlement states that all data provided to Google by members of the Settlement Class "shall be subject to a Registry privacy policy." (§ 6.6(vi)). However, this portion of the settlement does not specify the details of this policy. Additionally, this clause only addresses the privacy of rightsholder data. While the contemplated privacy policy could potentially provide privacy protections to authors' and publishers' personally identifiable information (PII), these protections are by no means guaranteed. The mere existence of a privacy policy does not guarantee privacy protections. The settlement also does not specify that any privacy protections will govern consumers' or library patrons' PII. Despite this, the settlement contemplates large-scale consumer usage of the Google Book Search through both its consumer purchase option and its institutional subscription feature.

C. The Google Book Search Settlement Addresses Non-Privacy Topics in Great Detail

The Settlement's near silence on privacy issues is inconsistent with the level of detail contained in the settlement's other terms. The Settlement sets forth a wide variety of obligations for the settling litigants, and addresses most in great detail. The Settlement describes the parties' agreement regarding: Google's digitization and use of books; the establishment of an independent digital rights registry for all works falling within U.S. copyright; access arrangements for rightholders, institutional subscribers, paying customers, and non-paying browsers; Google's book-related advertising; revenue sharing between Google and rightsholders; the display of "orphaned works;" Google's relationships with libraries that submit books for digitization; security standards to control access to Google's Book Search service; and dispute resolution procedures.

Despite the Settlement's breadth, it contains substantial detail. The "Definitions" section alone is seventeen pages long. The Settlement's security standards include granular descriptions of access controls, administrative password issuance, and security standards for password creation, as well as a "security implementation plan," "security audits," and an appendix setting forth further detail. The Settlement's Security Standards only restrict access to copyrighted materials. They do not restrict Google's collection or use of user data. The Settlement's discussion of book-related advertising describes permissible and impermissible advertising practices in great detail (e.g. "pop-up" and "pop-under" ads are prohibited on book display pages, but any type of advertising is allowed on search results pages). The Settlement's revenue sharing arrangements are similarly specific, including a standard split (70% to rightsholders, 30% to Google), and numerous provisions for deviation from that standard (e.g. temporary discounts, direct-to-consumer purchases, and the use of intermediaries for institutional sales).

In contrast to the Settlement's specificity concerning these topics, the Settlement's sole reference to privacy is described in Subsection B above.

D. Several Settlement Provisions Implicate Consumers' Privacy Interests, Though They Fail to Explicitly Address the Topic

1. Visible Watermark on Institutional Subscription Printouts

Based on the settlement terms, some entity - whether Google or the public libraries - will be required to keep track of personally identifiable user information. When users of the institutional subscription database print out pages of a particular book during a usage session, Google will include a visible watermark that "displays encrypted session identifying information provided by the subscribing institution during such session, and which could be used to identify the authorized user that printed the material or the access point from which the material was printed." (§ 4.1(d)). Because Google is the entity placing the watermark on the printed pages, this clause implies that libraries may provide some PII to Google to serve this purpose. The settlement, however, places no restrictions on (1) which data, if any, will be provided to Google for the purposes of creating this watermark; (2) the extent of data libraries will need to collect and maintain to make creation of these watermarks possible; (3) how long such data will be maintained on Google and/or library servers; and (4) circumstances that would justify retrieving a particular institutional subscription user's individual usage and/or printing history.

2. The BRR's Collection and Distribution of Data

The settlement terms indicate that several pieces of rightsholder data will be collected and provided to Google by the BRR. Such data includes "a list of all Books and Inserts for which a Registered Rightsholder has registered with the Registry," (§ 6.6(c)(i)) "corrections to [book] Metadata," (§ 6.6 (c)(ii)) and "the identity of any Registered Rightsholder for a given Book or Insert." (§ 6.6(c)(iii)). Although the default rule requires that the identities of the rightsholders be disclosed, the true identity will not be disclosed when (1) a book is published under a pseudonym, in which cases the pseudonym will be provided to Google; or (2) when a Rightsholder explicitly requests nondisclosure, in which case an alias will be provided by the BRR. Nevertheless, the BRR is not allowed to either "encourage Rightsholders to request, nor discourage Rightsholders from requesting, such non-disclosure." Information provided to Google relating to registration, claims, and opt-out processes is subject to a BRR privacy policy, (§ 6.6 (a)(vi)) but the settlement places no explicit limitations on transfers of data from the BRR to Google. (§ 6.6 (a)(i)).

Meanwhile, the settlement also requires that Google provide certain forms of data to the BRR. Such data includes the "name of any library to which it has provided Digital Copies of Books Digitized in the United States." In addition, Google must provide quarterly updates to the list of books it "has digitized under the Settlement Agreement along with Metadata." (§ 6.6(a)(ii)). Although the Settlement specifies examples of metadata such as the author, publisher, ISBN, and date of publication for a particular work, the Settlement broadly defines metadata as "other data." (§ 1.85). Therefore, the scope of such metadata is not limited by the settlement.

Data on books sold, library scans, usage data, registration/claims process data, and any additional information reasonably necessary for the BRR to perform its obligations under the settlement must also be provided to the BRR by Google. (§ 6.6(a)). The settlement places no limitations on the level of granularity of usage data that will be collected and reported to the BRR, and the extent to which "additional information" provided to the BRR may include PII in specific contexts.

Rightsholder information is also subject to Section 15.3 of the settlement, which pertains to confidentiality of such information. This provision requires that Google cannot disclose personally identifiable information "for any purpose other than to effectuate this settlement agreement." (§ 15.3). However, this restriction only applies to information that Google receives in conjunction with the Rightsholders' registration process with the BRR. It does not apply to any Rightsholder information that is obtained through any other means - public or private. In these cases, the Settlement places no limitations on Google's ability to disclose personally identifiable information.

3. Books Excluded from the GBS Database

Under the settlement, Google may, at its sole discretion, exclude books from the Google Book Search database for editorial or non-editorial reasons. (§ 3.7(e)). Google must notify the BRR that such books have been excluded from the database and, in addition, be provided with a digital copy of the book. (§ 3.7(e)(i)). Because Google has removed these books from its database, the settlement allows the BRR to solicit a third party service provider who will provide consumer purchases and institutional subscriptions for these works. This third party is "deemed a successor of Google" under the settlement-thus, it will be bound by the settlement to the same extent Google is bound. However, the settlement places no explicit restrictions on how a third party provider would protect the privacy of its users or the Rightsholders who own copyright in these excluded works. Given the sensitive nature of works that are likely to be included in the third party database (and excluded from the GBS database), additional privacy protections may be necessary for the individuals who use that third party database.

4. Tracking Non-Consumptive Research

Library affiliates and other qualified users have the option to conduct non-consumptive research using a research corpus that may be created under the settlement. (§ 7.2(d)). This research corpus may be hosted at up to two Host Sites at any given time, and the terms of the settlement allow Google to be one such host site with the approval of the BRR. (§ 7.2(d)(ii)). These host sites will be subject to a "Host Site-Registry Agreement." This agreement must incorporate settlement provisions relating to security and breach, but the Settlement places no limitations on these host sites' handling of qualified researchers' PII or research data, and it does not place any restrictions on how such host sites monitor qualified users' consumptive research activities. (See § 8 et. seq.). In fact, the settlement requires that the host site review a qualified user's research agenda before the research can be conducted.

5. Google Data Collection - User Authentication Requirements

The Settlement provides three models for access to the full text of copyrighted books: an "Institutional Subscription Model," which "will enable users [at subscribing institutions] to view, copy/paste, and print pages of a Book, and may enable Book Annotations;" a "Consumer Purchase" model, which "will enable purchasers to view, copy/paste and print pages of a Book, and may enable Book Annotations;" and a "Consumer Subscription Model," which is an "individual version of an Institutional Subscription." (§ 4.1(d), 4.2(a), and 4.7(d)). The Settlement does not comprehensively describe the processes by which Google will acquire users' data. However, the Settlement contains numerous terms that mandate the collection, retention, and transfer of personally identifiable user information.

The Settlement requires users to submit personally identifiable information to Google when using the Consumer Purchase Model. (Settlement Attachment D at § 3.9.2). The Settlement states:

Google shall use commercially reasonable efforts to authenticate individual End Users purchasing access to individual Books through the use of account login or other equivalent method. An End User that is logged in will be identified as an Identified User based upon such End User's login account information.

The Settlement also requires users to submit personally identifiable information when using the Institutional Subscription Model. (Settlement Attachment D at § 3.9.3).The Settlement states:

Google shall use commercially reasonable efforts to authenticate individual End Users for access to Books in an Institutional Subscription by verifying that an individual is affiliated with an institution with an active subscription. Google's efforts will be in partnership with the subscribing institutions in a manner consistent with, or otherwise equivalent to, generally accepted industry standards for authentication of use of subscriptions. Techniques used may include IP address authentication, user login, and/or leveraging authentication systems already in place at an individual institution.

In the Institutional Subscription Model, the Settlement requires use of "encrypted session identifying information provided by the subscribing institution" that can be "used to identify the authorized user that printed [copyrighted] material or the access point from which the material was printed." (§ 4.1(d)). The Consumer Purchase Model contains an identical requirement. (§ 4.2(a)). Under the Settlement, Google must "limit access to books to appropriate individuals within the subscriber institution" and the company retains the right "to restrict or terminate a user's account … if the user distributes the copyrighted material from a Book in a manner that is prohibited by the terms and conditions or applicable law." (§ 4.1(e)). These requirements necessitate the collection, retention, and transfer of user data. However, the Settlement places no restrictions on Google's collection or use of this data.

i. Authentication Using Google Accounts

Under the settlement, provisions imply that users may be required to use a Google Account to use the Google Book Search database. Such a requirement could, for example, facilitate Google's integration of Google Book Search with other products. The Settlement allows Google to create hyperlinks to Preview Use Book pages from its other revenue generating products "including, for example, Google Web Search, Google Earth and other Google services that show search results by browsing . . . ." (§ 3.10(b)). In addition, the Settlement Agreement allows Google to place advertisements on Google Book Search pages as long as those advertisements are not placed "on, behind, or over the contents of a Book or portion thereof." (§ 3.10(c)(iii)). The Settlement "does not otherwise limit Google's right to display advertising anywhere on Google Products and Services." (§ 3.14).

ii. Combination of Borrower and Purchaser Records

The terms of the Settlement state that, for institutional subscriptions "Google will . . . limit access to Books to appropriate individuals within the subscriber institution." (§ 4.1(e)). To the extent that this is true, Google will therefore need data from the libraries that will allow it to authenticate users. However, the settlement places no restrictions on Google's use of borrower data from the libraries. Because the settlement also does not limit Google's use of consumer purchase data, the settlement does not constrain any attempt by Google to combine a particular user's Borrower and Purchaser records to analyze usage patterns and make connections between a particular user's borrower and purchaser history.

iii. Google's Use of Book Annotation Data

Under the Settlement, users of institutional subscriptions or individuals who purchase books under the consumer purchase option may make annotations to those books. (§ 1.17; § 3.10(c)(ii)(5)). Rightsholders can choose to disallow their books from being annotated. (§ 3.5(b)(i)). The Settlement limits a user's ability to share book annotations with other users-thereby protecting user-to-user privacy-in several ways. First, the settlement does not allow book annotations to be shared with the general public. (§ 3.10(c)(ii)(5)(a)). In addition, book annotations "may not be accessible to any user who has not expressly chosen to access it either by active selection or by participation in a group such as a class for which this feature is used." (§ 3.10(c)(ii)(5)(b)). Thus, a user must opt-in to view others' book annotations. Users can also choose who can view their annotations. Those who annotate books in conjunction with consumer purchases can share their book annotations "with no more than twenty-five (25) individuals and the user must identify . . . each individual with whom such Book Annotation will be shared." (§ 3.10(c)(ii)(5)(d)). Similarly, institutional subscription users may only share their book annotations with "instructors and students in a single academic course sharing such Book Annotation in connection with such course during an academic year," or "with students of the same course during a subsequent academic year, and employees of the subscriber of the Institutional Subscription sharing such Book Annotation in connection with a discrete work project during the course of that project." (§ 3.10(c)(ii)(5)(e)). The Settlement, however, places no restrictions on Google's or the BRR's use of such book annotations once users create them. In addition, the Settlement requires Google to implement the limitations on annotations described above, which necessitates collection of personal information from users. The Settlement places no restrictions on Google's use of such data.

E. How the Settlement Addresses Privacy - Chart


Type of Data

Book Rights Registry (BRR)

Google

Third Party Service Provider (Research Corpus Host or Successor)

User ID

Unclear if Google will distribute USER IDs to the registry. Under §6.6(a)(vii), additional information necessary for Registry operations may be provided by Google to the Registry.

Google will authenticate users by a Consumer Purchase model using an account login or its equal (Attachment D at §3.9.2); Authentication methods through institutional subscriptions will be created in partnership with the institutions

Same as Google

User Personal Information

No maintenance of these records contemplated, although usage histories can be provided to registry, which may be broken down user-by-user (§6.6(a))

No limitations on collection of personal information associated with accounts, along as authentication is done using "commercially reasonable efforts"

Same as Google

Usage Histories

Must be provided to Registry by Google Under §6.6(a)

To render §6.6(a) effective, Google must collect usage data. However, the granularity of such data (user-to-user or aggregate) is not specified

The settlement authorizes third party host sites for the research corpus, but does not limit their tracking of non-consumptive research (See §7.2(d)(ii)); The Settlement gives third party service providers the same authority as Google to collect usage data

Book Metadata

Names of libraries and lists of books it has digitized along with Metadata (Provided by Google) (§6.6(a))

Must collect names of libraries and lists of books it has digitized along with Metadata to facilitate §6.6(a)

Same as Google; Excluded Book Information Will Be given to Contemplated Third Party Service Provider (§3.7(e)(i))

Rightsholder Personal Information

Maintains all personal information of Rightsholders (Name, Address, Contact info, etc.)

Identities disclosed to Google by Registry unless Rightsholders opt-out or pseudonym used to publish (§6.6(c))

Same as Google

Borrower and Purchaser Records

No maintenance of these records contemplated

Google has some delegated authority over authentication within institutions (§4.1(e)); There are no limitations imposed on transfers of these records from the settlement

Same as Google

Book Annotation Data

No maintenance of these records contemplated

Book annotations are allowed unless Rightsholders opt-out (§4.1(e)); Limitation on user-to-user sharing (§3.10(c)(ii)(5)) but no limitations on Google's use of such data

Same as Google

F. How the Settlement Addresses Privacy - Data Flow Diagram

Google Books Data Flow

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