Now is the time to act over Google

<p>It is more than four years since Bloomsbury chief executive Nigel Newton warned publishers about Google&mdash;yet in a little over two months what he memorably described as the search engine&rsquo;s &ldquo;literary land-grab&rdquo; will become codified in US law. The Publishers Association this week held seminars explaining why the 385-page Google Settlement matters to UK publishers. In fact it matters to any publisher worldwide whose books have been hoovered up by Google.<br />
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As is becoming increasingly clear there is no easy option available to non-US publishers. (I'm not sure there is an easy route for US publishers either, but at least they got to have a say in the drawing up of the Settlement.)<br />
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Perhaps most bizarre is that all publishers must actively opt out, otherwise they will find themselves bound by the agreement. As publishers are finding out, there is almost no good reason to opt out, since Google could then carry on its digitisation process, and opting out would put the onus back on the individual publisher to pursue its own legal challenge&mdash;hardly advisable. Even objecting to the settlement at the Fairness Hearing, set for New York on 11th June, means you are bound by the agreement. <br />
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Some describe this as a &ldquo;win-win-win&rdquo; (for publishers, Google and libraries), others as the &ldquo;least worst outcome&rdquo;. Google does give some ground. The agreement acknowledges the rights and interests of copyright owners, and Google will abide by their instructions&mdash;even if that involves removing the book from the programme. But it is hard to ignore the conclusion that ultimately Newton has been proved correct.<br />
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Google has some seven million titles in its database: of these, Google will now have effective control over six million which are either considered out of print, or as orphan works. Google will set the price for downloading these books. It has been called the world&rsquo;s largest library, but it is also set to become the world&rsquo;s largest bargain bookseller (<a href="http://www.idealog.com/blog/the-google-settlement-and-unanswered-questio... is understand that Google will receive 37% of the revenue from these sales, with the remainder going to the Books Rights Registry, and from there to charity--apparently</a>).<br />
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Of the remaining one million titles in copyright, publishers stand to gain $60 per title for each book digitised. But this suddenly seems like small beer when set against what Google gets&mdash;effective legal control over the other six million titles.</p>
<p>UK publishers may think they are immune from Google's exploitation of the 7m, but this isn't true. Is there any reason why the 6m out of print or orphan works cannot be displayed and sold outside of the US? Even if Google had no plans to do this, then how good will its firewall be preventing access, not just to the 6m but to the other 1m titles, where a US rights holder might have granted Google full display rights. Google says it will enforce this using IP address, but this can be easily &quot;hacked&quot;, in fact most times a hack isn't even necessary, just an internet provider with a route via the US (as is actually the case for employees of <i>The Bookseller</i>). The PA says if Google does not police this correctly, then it can be sued. <br />
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<a href="http://bookseller-association.blogspot.com/2009/03/grimmelman-speaks-up-... the Bookseller's Association's blogger Martyn Daniels has said &quot;as the Google settlement draws ever closer everyone is increasingly being asked to stand up and be counted&quot;.</a> Daniels, like the BA, is against it. Writing in the same post: &quot;We hope that the judge throws out the settlement and even if this means some hard decisions, other threats and it takes a number of years before we get a solution, it is better than starting with a bad settlement and wondering how we get out of it, or trying to amend and adapt it after the event and deal with an omnivore.&quot;<br />
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There are others too (though probably not enough). <a href="http://laboratorium.net/archive/2009/03/28/speaking_up_on_book_search">T... include the Institute for Information Law and Policy from New York's Law School, which warns of &quot;underexplored dangers&quot;.</a> It has filed a brief <i>amicus curiae</i> asking the Court to seek &quot;further counsel&quot; from those who were not part of the original Settlement. It rightly points out that no-one is currently standing up for the missing owners of the orphan works: &quot;By virtue of their status as orphan works owners &mdash; a well-recognized and significant subclass of book copyright owners &mdash; they are unlikely to appear before this Court to opt out of or object to the proposed settlement. Google will therefore be explicitly authorized to make these works available to the public in ways that would be flagrant copyright violations were it not for the proposed settlement.&quot; (Interestingly, Microsoft, which pulled its book scanning operation one year ago is part-funding the IILP's work on the Settlement).<br />
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As <i>The Bookseller </i>said last October, there is much that is good about the agreement. Yet, as the PA outlined this week, there are a number of good reasons that might yet lead to a delay. An objection, or even an appeal, at least would have the impact of giving publishers more time to assess their options, or these &quot;underexplored dangers&quot;, if you will. It would be a surprise of course, and risky&mdash;Google could walk away&mdash;but it feels necessary.<br />
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Publishers have been forlornly awaiting the iPod moment for yonks. But in fact the &ldquo;iTunes&rdquo; momement is already upon them. Now really is the time to act.</p>