In recognizing Bertelsmann's Richard Sarnoff as PW's Publishing Person of the Year, we salute his vision and hard work. In particular, we salute the discussion the settlement process has generated, and wish to recognize other key voices in this historic conversation so far.
Brewster Kahle
The visionary technologist and founder of the Internet Archive, Kahle formed the Open Content Alliance in 2005 as an alternative scan plan to Google's. He has since become perhaps the most implacable critic of the settlement. “In essence, Google will be privatizing our libraries,” Kahle editorialized in the Washington Post in May. Among his many problems with Google: lack of openness. OCA places no restrictions on public domain books scanned by its members, unlike its rival, and OCA scans appear in all search engines. Kahle also objects to the deal's treatment of orphan works. Despite amendments, the revised deal, according to the Open Book Alliance, a broad coalition of opponents to the settlement which Kahle helped organize, still falls short. “At its heart, this is the same flawed agreement.”
Dan Clancy
Who knew that out-of-print books would become such a hot issue for hi-tech Google? When the settlement effort is over, Google's Dan Clancy deserves a good long vacation. As engineering director for Google's book project since 2005, Clancy has not only been instrumental in directing Google's massive scanning project, he has also been perhaps the most visible face for Google when it comes to the settlement. He has been a tireless advocate and a gracious spokesperson for Google's digital mission even as the deal fell under fire from critics. “The settlement was driven by what we felt was, in the end, better for everyone and better for users in particular,” Clancy said in an interview earlier this year. “The snippets we've been showing are a far cry from what the user wants, and really the only solution was a partnership.”
Paul Aiken
Authors Guild executive director Paul Aiken is a key architect of the settlement. “I can tell you very simply what all authors like,” he notes of the impetus behind the Authors Guild's suit and its role in the settlement. “They like their books to be read, and, except for the most financially perverse of authors, they like a good royalty check.” Since the settlement, Aiken has been one of the strongest voices stumping for it. “The task before us was to take Google's audacious library digitization project and transform it into something both good for readers and agreeable to the people who write and publish books,” Aiken said at the press conference announcing the deal in 2008. “To do that, we found we had to make the project even more audacious.”
Paul Courant
When University of Michigan librarian PaulCourant signed off on Google's proposal to digitize the entire contents of the UM library, he helped amp a national conversation about the future of books. He has been heralded by some, vilified by others—some publishers suggested that UM might find itself subject to a lawsuit. “Expediency is a bit of a dirty word,” Courant explains of Michigan's fateful decision to open its library to Google. “But I view large-scale digitization as expeditious. We have a generation of students who will not find valuable scholarly works unless they can find them electronically. At the rate that the Open Content Alliance is digitizing things, that generation will be dandling great-grandchildren on its knees before these great collections can be found electronically.”
Marybeth Peters
Although the Department of Justice acknowledged early on that it had opened an inquiry into antitrust issues, the U.S. government had been mostly silent on the settlement until a hastily called congressional hearing on September 10. There, the U.S. Register of Copyrights, Marybeth Peters, unloaded. “We are greatly concerned by the parties' end run around legislative process and prerogatives,” she testified. Peters also acknowledged the settlement's positive developments: the creation of a rights registry for book authors, publishers, and potential licensees; increased accessibility to those with print disabilities; and increased ability of libraries to offer online access to books and other copyrighted works. “However,” she noted, “they are not a reason to throw out fundamental copyright principles; they are a pretext to do so.” It remains to be seen how or if her copyright concerns will factor into the approval process.
Jonathan Band
An intellectual property lawyer in Washington, D.C., Jonathan Band published the first and perhaps best explanation of the Google Settlement, A Guide for the Perplexed: Libraries and the Google Library Settlement, just days after the agreement was announced in October 2008—and he has since published two more versions to address changes, including one on the amended settlement. In a library community brief filed last May, Band raised significant concerns, but did not object to the deal. “The settlement is potentially so far-reaching that its full implications are unknowable at this time,” he wrote. At a July 2009, NYPL panel on the settlement, Band cited the health-care debate as evidence that legislation may not be a viable alternative. “What makes the people who assume they would be losers under this deal assume they would do better with legislation?” he asked.
Robert Darnton
In February, Harvard University librarian Robert Darnton published an essay in the New York Review of Books that crystallized opposition to the Google settlement. “Google isn't a guild, and it didn't set out to create a monopoly,” he warned, “but the class action character of the settlement makes Google invulnerable to competition.” Darnton has since published a book, The Case for Books; and recently wrote another essay on the revised settlement for the NYRB, in which he suggested the Obama administration undertake something of a government bailout for books. “We are agreed that something must be done to improve the nation's health. Why not do something to enrich its culture?”
James Grimmelmann
A lawyer and faculty member at New York Law School, Grimmelmann was among the first to address the Google settlement's potential antitrust issues. From there he went on to create, with the help of his students and colleagues, the Public Index, “a clearinghouse for settlement information and discussion.” He also spearheaded “D Is for Digitize,” a conference on book scanning issues and the settlement, held October 8—10 in Manhattan. “A fairness hearing and a chance to file comments are empty gestures unless a rich public dialogue gives people the chance to formulate informed opinions,” Grimmelmann says of his involvement. As seemingly with all things Google, the Public Index was not without a minor bit of controversy: it accepted a grant from Google competitor Microsoft. “We also received a grant from the American Library Association, but no one has accused the project of being in the pocket of Big Library,” Grimmelmann quips, stressing that the Microsoft money came has not influenced the project.
Pamela Samuelson
University of California, Berkeley, law professor Pamela Samuelson has raised critical issues with the settlement—and her filings with the court could prove to be influential. “Let's start with two givens,” Samuelson recently wrote in the Nation. “First, Google is an outstandingly innovative company. Second, Google is no more above the law than any other company, no matter how much social benefit its projects would arguably bestow on society.” Samuelson's criticism captures the conflict at the heart of this deal: should the parties be allowed to possibly bend the law because of the settlement's potential cultural benefits? No, Samuelson insists. “Arguments that the settlement is in the public interest should be directed to Congress, not the courts,” she writes. “The GBS class action settlement would set a dangerous precedent and undermine democratic values.”
Scott Gant
One of the most significant, well-argued objections to the settlement emerged in August from Scott Gant, a Harvard-educated lawyer with more than a decade of class action litigation, and the author of We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age (Free Press). Gant told PW last week his objections remain despite the amended, deal and he we will attend and speak at the fairness hearing set for February 18.
Roland Reuss…or Viviane Reding?
In Europe—particularly in Germany and France—the Google settlement has been met with trepidation. Perhaps the most vocal critic is German scholar Roland Reuss, author of a petition now known as the Heidelberg Appeal that criticizes Google and the open access movement for undermining copyright. At a panel at this year's Frankfurt Book Fair, Reuss called Richard Sarnoff naïve and termed Google's view of the settlement “hysterical” propaganda. It was Reuss, however, who came off a bit hysterical. Reuss's views in Europe are countered by the EU commissioner for telecoms and media, Viviane Reding, who has been urging the continent to action. “Digitization of books is a task of Herculean proportions,” Reding noted in an EU statement earlier this year. “Public and private bodies can combine the potential of new technologies and private investments with the rich collections of public institutions built up over the centuries. If we are too slow to go digital, Europe's culture could suffer in the future.”
Gail Steinbeck
When the debate over the settlement is over, Gail Steinbeck will be remembered as a minor player, but one has to wonder what might have happened without her. Just one week from the initial May 5 deadline by which those opposed to the settlement were to opt out or be swept into the deal, Judge Denny Chin granted a four-month extension asked for by a group of authors rallied by Steinbeck. She put forth a simple argument: what's the rush? As Steinbeck attorney Andrew Devore pointed out in the motion, “This is not a typical class action settlement,” but “a decision about perpetual future rights” that “may well prove to be the most important and valuable channel for the distribution and exploitation of creative works.”
