Pamela Samuelson played a lead role in voicing academic authors' concerns over the Google Books settlement. That advocacy made an impact: Judge Denny Chin cited her writing in his ruling rejecting Google's deal with authors and publishers….
In an interview with The Chronicle on Wednesday, Ms. Samuelson, a copyright expert and professor of law at the University of California at Berkeley, shared her take on what the judge's decision means—and where we go from here.
Q. Is this a good ruling?
A. It's the only ruling really that the judge, I think, could have made. The settlement was so complex, and it was so far-reaching. With the Department of Justice and the governments of France and Germany stridently opposed to the settlement, it seems to me that the judge really didn't have all that much choice. So the ultimate ruling, that the settlement is not fair, reasonable, and adequate to the class, is one that I think was inevitable.
The thing that surprised me about the opinion was that he took seriously the issues about whether the Authors Guild and some of its members had adequately represented the interests of all authors, including academic authors and foreign authors. That was very gratifying because I spent a lot of time crafting letters to the judge saying that academic authors did have different interests. Academic authors, on average, would prefer open access. Whereas the guild and its members, understandably, want to do profit maximization.
… One of the things that was very pleasing to me about the judge's ruling is that the judge also said changes this far-reaching to the default rules of copyright law have to be done through Congress.
The settlement would grant Google about five different licenses that ordinarily, to get that broad a license, you'd have to get it from Congress….
If Congress was going to grant licenses like this, it wouldn't just grant them to Google. Part of what the Justice Department came to recognize is that the licenses that Google would get from the settlement would create barriers to entry to any other firm, because no one else could get those licenses. That's something that really fed into the antitrust analysis in the case. The settlement would give Google a de facto monopoly over the orphan books [unclaimed works whose copyright owners aren't known or can't be found] that would make a subscription service that it could offer unreachable by any subscription service that anyone else might offer. Google could have millions and millions of books that no one else could reach.
A. He decided that the privacy objections by themselves were not a reason to reject the settlement….
The way the settlement was drafted, it called for Google to engage in extremely extensive monitoring of access to books. Now you could say that one of the reasons they needed to do that was because, if they're going to pay specific authors for specific books that might be read, let's say, in the institutional-subscription corpus, then they've got to know whose books are being read.
But as we all know, Google basically also wants to know everything that we look at and everything that we read, and they would be engaged in profiling and serving up ads. There were virtually no privacy guarantees for users in the settlement agreement….
… Libraries have been very, very careful over time about protecting the privacy interests of their user base. And Google was not willing to make commitments to essentially accomplish an equivalent level of protection. When we're talking about a corpus of books that millions of people in the U.S. would be using, not to have any serious privacy commitments here really was distressing.
Q. What does the ruling mean for academic authors?
A. There are a couple of paths that can happen from now going forward. One path is that academic authors can communicate with Google about their interest in making their books available on an open-access basis. That would be something that would allow more of their books to be more widely available.
Second, I'm planning to be working with a group of academics to try to put together a legislative package that would accomplish some of the positive goals that the Google Books settlement raises as possibilities. Much greater access to out-of-print books: I think that goal is really commendable.
A third possibility is that, if this matter goes into litigation, I think academic authors will probably offer support to Google in its fair-use defense, because we are the kind of people who think that if you scan my book in order to index it and make little snippets available, that's actually a good thing. That's going to promote more access to my books, and that's what I want as an academic….
See also
Research Libraries See Google Decision as Just a Bump on the Road to Widespread Digital Access (Chronicle of Higher Education)
