Kernochan Center Conference Scrutinizes the Google Books Settlement



By Tamara Bock

Google has a reputation for making a splash. But when it decided to scan more than seven million books and create a publicly searchable electronic database of largely copyrighted material, it created a tsunami in the world of copyright law. Authors and publishers responded accordingly: They sued. But the resulting settlement that Google reached with the Authors Guild and the Association of American Publishers has created a tempest in itself.
The ramifications of the more-than-200-page agreement were the subject of a conference hosted by Columbia Law School’s Kernochan Center for Law, Media and the Arts on March 13. The event, titled “The Google Books Settlement: What Will it Mean for the Long Term?”, was designed to grapple with the myriad questions that the settlement raises. More than 300 people attended, representing major players on all sides of the equation—from publishers, to authors, to e-commerce outlets to major law firms and university libraries. 
June M. Besek, Executive Director of the Kernochan Center and Lecturer-in-Law, kicked off the discussion. She explained that the Kernochan Center’s goal was to steer away from analyzing the nuts and bolts of the settlement to instead look at how it could affect the landscape of publishing. Besek then provided a foundational overview of the settlement as background for the conference.
Marybeth Peters, the U.S. Register of Copyrights, followed with a discussion of some of the legal implications of the agreement. She argued that the parties essentially created a piece of legislation without “a peep from any of the 535 members of Congress.” While Peters said that she was not opposed to the settlement in principle, she thought that the agreement circumvented the U.S. Constitutional requirement that copyright policy be set by the legislature.
In the first panel, “The Future of ‘Books,’” the participants discussed issues ranging from the revenue and marketing opportunities and limits that the settlement agreement creates, to the impact of the agreement on foreign authors and publishers, to the ways the settlement might affect the author-publisher relationship. Participant Richard Sarnoff of Bertelsmann, Inc., said while the erosion of copyright law was a significant concern, ultimately the settlement would be positive for the future of books. The agreement, he said, would provide renewed access to out-of-print books that had been “lost in the bowels of a few fantastic libraries.” 
But Jule Sigall from Microsoft worried about the effect of the settlement on orphan works rights-holders. Broadly, orphan works are copyrighted works whose rights-holders cannot be identified or located.  Because the rights-holder is unavailable to provide a license, future creators may be reluctant to use orphan works. The settlement agreement would essentially relieve Google from the onus of obtaining licenses from orphan rights-holders, he said, because they were unlikely to come forward and opt out of the settlement agreement.
The second panel, “Authors and Incentives,” evaluated the impact of the settlement on authors. The panelists explained the contours of the Books Rights Registry, the entity established by the settlement to administer relations between Google and authors and publishers. But there was disagreement over how well the settlement will serve creators. Jan Constantine of the Authors Guild said that the resolution of thorny issues of electronic rights between publishers and authors “was worth two and a half years [of negotiation] alone.” Author Eugene Linden expressed concerns about the settlement, saying that it makes it easier to be a writer by reducing barriers to access, but harder for a writer to make a living. On the other hand, Victor Perlman of the American Society of Media Photographers, Inc., expressed dismay that photographs were excluded from the settlement discussions.
The final panel of the day, titled “The Public Interest,” looked at how the settlement agreement may affect the public. Panelists discussed how libraries, users of copyright law, readers, and researchers may all experience reverberations from the agreement.
Robert Darnton, the Carl H. Pforzheimer University Professor and director of the Harvard University Library, said he felt “utopian about Google,” calling the Google Books Search “the greatest digital library ever.” Nonetheless, Darnton said that even the company with “do no evil” as its guiding principle is in fact a monopoly that ultimately may become intoxicated by the power of monopoly pricing. Without an authority to monitor fair pricing, Darnton said, the potential for exorbitant pricing could cripple library budgets and ruin libraries.
Google Associate General Counsel Alexander Macgillivray countered that there are mechanisms built into the settlement agreement to check Google’s pricing power. Macgillivray discussed the advantages to the public from the enhanced access to books that the settlement would provide, focusing in particular on the potential benefits to the visually impaired. He also defended against allegations such as the potential for censorship and the repeated expressions of concern about Google’s power over orphan works by New York Law School professor James Grimmelmann. 
In the end, the Kernochan Center’s panelists took a step toward mapping the uncharted waters of the settlement. The conference is sure to be one of many discussions about the agreement for, as Darnton said, “what is at stake here is the spread of knowledge and that involves a whole citizenry.”
Columbia Law School, founded in 1858, stands at the forefront of legal education and of the law in a global society. Columbia Law School joins traditional strengths in international and comparative law, constitutional law, administrative law, business law and human rights law with pioneering work in the areas of intellectual property, digital technology, sexuality and gender, criminal, and environmental law.

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