GBS 2.0 Misses the Mark By A Mile
As we have had 10 days to review GBS 2.0, the consensus from a broad community of stakeholders is clearly concern and disappointment at Google’s decision to make only minor modifications to the proposed settlement.
Earlier this month, the Open Book Alliance released baseline requirements that the new settlement proposal must meet in order to bring about the mass digitization of books in a way that embraces openness, competition and the public good. These requirements reflected the collective expression of concerns by the U.S. Department of Justice, authors, publishers, academics, foreign nations, consumer advocacy groups, and many others, and thus we think it appropriate to review the revised settlement within this framework.
Unfortunately, the tweaked agreement failed to meet the minimum requirements.
See the table below to see how GBS 2.0 stacks up:
|
Requirements |
Settlement 2.0 |
| The settlement must not grant Google an exclusive set of rights (de facto or otherwise) or result in any one entity gaining control over access to and distribution of the world’s largest digital database of books. | FAILED. Version 2 still gives Google a de facto exclusive license to “unclaimed works” (which includes millions of books, including “orphan works” and beyond), which will be the largest digital database of books in history. While the parties have tried to avoid the objections of those like the French and German governments by excluding books published outside the U.S., U.K., Canada and Australia, Version 2 still gives Google de facto exclusivity to the millions of unclaimed books it does cover. Nothing was done to allow any others to get the same access to those books as Google. |
| Authors and other rights holders must retain meaningful rights and the ability to determine the use of their works that have been scanned by Google. | FAILED. Version 2 still forces rights-holders to grant Google a very broad license to use copyrighted books to improve any and all of their commercial services, without compensation for those uses. Google has also indicated that it will still scan and display portions of non-U.S. books that are no longer subject to the proposed deal, forcing those rightsholders to have to sue Google in federal court to have their copyrights respected. |
| The settlement must result in the creation of a true digital library that grants all researchers and users, commercial and non-commercial, full access that guarantees the ability to innovate on the knowledge it contains. | FAILED. Version 2 changed none of the restrictions that limit access for research purposes and prevent researchers from commercializing the results of their research in the book corpus that will be hosted by library sites. |
| All class members must be treated equitably. | FAILED. Version 2 continues to treat many different subclasses of rightsholders differently and unfairly. Academic authors and other non-Authors’ Guild authors continued to be excluded from the negotiations yet are included in the proposed settlement. Version 2 also removes many foreign language owners from the proposed settlement without any commitment from Google to stop scanning their works and to respect their copyrights. |
| The settlement cannot provide for competition by making others engage in future litigation. | FAILED. Version 2 still requires anyone other than Google to face the uncertainties of copyright infringement litigation if they want to try to get access to a comparable license to digital books. |
| Congress must retain the exclusive authority granted by the U.S. Constitution to set copyright policy. | FAILED. Version 2 still creates a “compulsory license for one company”, as the head of the U.S. Copyright Office concluded. Such “compulsory licenses” must be enacted by Congress, not misuse of class action. |
| All rights holders impacted by the settlement must have a meaningful ability to receive notice, understand its terms and opt-out. | FAILED. The parties’ proposed class notice program for Version 2 does not correct the deficiencies of the original notice program. |
| The parties that negotiated the settlement must live under the terms to which they seek to bind others, rather than their own separately negotiated arrangements | FAILED. Version 2 still allows the members of Authors’ Guild and the AAP to pull their books from the settlement’s terms and enjoy special deals with Google, making them unfit to represent the broad class of owners who lack this negotiating power and will be stuck with these terms. |
- On Nov 23, 2009
- Posted by admin.
- It is filed under: Uncategorized
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