The Google Books Settlement: What Will It Mean for the Long Term?

Columbia Law School
435 West 116th Street (corner of Amsterdam Ave.)
New York, NY 10027
Friday, March 13, 2009
8:30 a.m. - 5:30 p.m.
http://www.kernochancenter.org/Googlebookssettlement.htm

Google, authors and publishers recently entered into a settlement agreement in The Authors Guild et al. v. Google Inc., a class action lawsuit brought against Google in connection with its use of copyrighted books in its Book Search feature, and in The McGraw-Hill Companies et al. v. Google Inc., a separate lawsuit by publishers. The settlement, if approved by the court, will provide new opportunities for authors and publishers to market their works. It will also enhance the public's ability to search for books and to get partial text displays (and, in the case of many older works, full text displays) at home, at school, and in libraries. At the same time, the settlement may have significant implications for copyright law, competition, research and scholarship.

The settlement creates a complicated and comprehensive plan for:

• copying copyrighted books in the collections of participating libraries, including them in Google's database, and displaying all or part of them under certain circumstances
• deriving revenues from certain uses of the database and from sales of books
• paying authors and publishers
• creating a Book Rights Registry to facilitate the distribution of revenues to right holders
• opt out by right holders, as well as a mechanism by which participating right holders can limit use of their books
• free public access to Google's "digital library" from public libraries and universities

The settlement embraces copyrighted works in U.S. libraries, regardless of whether the rightholders are U.S. or foreign nationals, unless the right holders opt out, which they must do by May 5, 2009.

In this full-day conference, we will examine the potential long-term implications of the Google settlement for the parties, for other stakeholders whose works are not included in the settlement (e.g., photographers and illustrators), and for the public interest.

Program

8:30-9:00 Registration and Continental Breakfast

9:00-9:30 Introduction

Welcome; logistics; brief description of the settlement

9:30-10:00 Speaker: Legislating Through Settlement (Marybeth Peters, U.S. Register of Copyrights)

What is the potential effect of the settlement on copyright law (e.g., the settlement's adoption of opt out principles; its concept of "commercially available")? What are the potential implications for the way in which copyright law is made? Is the settlement in effect legislation that has bypassed the legislative process? Is this a good way to revise the copyright law, given the difficulty of getting agreement among stakeholders in recent years?

10:00-10:30 Speaker: Competition Issues (Professor Randal C. Picker, Paul H. and Theo Leffmann Professor of Commercial Law, University of Chicago Law School)

Does the settlement raise any antitrust or other competition issues in respect of Google's role in the marketplace, the role and operation of the Book Rights Registry, or in other ways?

10:30-11:00 Break

11:00 - 12:45 Panel: The Future of "Books"

What will the settlement mean for traditional publishers? What will it mean for other online sellers? For libraries? What is likely to happen going forward? What will it mean for new works? For works from other countries? As a practical matter, will there be competition? Will the search engine and database that result from this settlement become the principal means of locating and purchasing books (or access to books)? Is it likely to become the sole source for some works, and if so, should that be a matter of concern?

Moderator: June M. Besek, Executive Director, Kernochan Center, Columbia Law School

Panelists:
Allan R. Adler, Vice President - Legal and Governmental Affairs, Association of American Publishers (AAP)

Niko Pfund, Vice President and Publisher, Trade and Academic Books, Oxford University Press, New York

Richard Sarnoff, Co-Chairman, Bertelsmann, Inc. and President, Bertelsmann Digital Media Investments

Jule Sigall, Senior Policy Counsel/Copyright and Trademark, Microsoft Corp.

Herman Spruijt, President, International Publishers Association

Lois F. Wasoff, Legal Consultant, former Vice President and Corporate Counsel, Houghton Mifflin Company

12:45-2:00 Lunch

2:00-3:30 Panel: Authors and Incentives

What does the future look like for authors under the settlement? What benefits will it bring to them? Is the settlement in all authors' interests? Will they get paid fairly? Does the settlement have the potential to provide meaningful new sources of income to authors? Or will it diminish their ability to develop other distribution channels, including self-publishing, where they might get a more significant share of revenue? What are the ramifications for authors who chose to opt out? Will there be other viable distribution options? How will the Book Rights Registry work, and how should it work? How will revenues (e.g., from institutional licenses) be allocated? What about those whose works are excluded, like visual artists?

Moderator: Professor Jane C. Ginsburg, Columbia Law School

Panelists:
Tracey Armstrong, President and CEO, Copyright Clearance Center

Michael J. Boni, partner, Boni & Zack LLC, lead counsel for the Authors Guild and the Author Sub-Class in the Google Settlement

Jan Constantine, General Counsel & Assistant Director of the Authors Guild

Arthur Klebanoff, President of both Scott Meredith Literary Agency and RosettaBooks, an e-book publisher.

Eugene Linden, Author, Winds of Change, The Future and Plain Sight and other books.

Victor S. Perlman, General Counsel and Managing Director, American Society of Media Photographers, Inc. (ASMP)

3:30-4:00 Break

4:00-5:30 Panel: The Public Interest

This panel will explore various aspects of the public interest in the Google settlement, both short term and long term. Among the issues to be considered are (1) Potential benefits to various communities, including education, research, libraries, and the blind, (2) Implications of a single business becoming the principal research and electronic access portal for vast numbers of books, and of search engine-as-publisher. (In the past people have used publicly-created research tools; does using solely privately-created tools raise issues?), (3) Concerns about potential censorship, manipulation of search results, and privacy, and (4) Long term preservation: Will institutions rely on Google to bear the costs of preserving books? Does the settlement provide an opportunity for comprehensive long term digital preservation by others?

Moderator: Mary Rasenberger, Counsel, Skadden, Arps, Slate, Meagher & Flom LLP

Panelists:
Jeffrey Cunard, Managing Partner, Washington, D.C. office, Debevoise & Plimpton LLP

Robert Darnton, Carl H. Pforzheimer University Professor and Director of the Harvard University Library

James Grimmelmann, Professor, New York Law School

Alexander Macgillivray, Associate General Counsel for Products and Intellectual Property, Google Inc.

Carol A. Mandel, Dean, Division of Libraries, New York University

Sponsors

Columbia Law School and the Kernochan Center for Law, Media and the Arts gratefully acknowledge the following conference sponsors:

The Horace S. Manges Lecture and Conference Fund

The Copyright Society of the U.S.A.

Cowan, DeBaets, Abrahams & Sheppard LLP

Skadden, Arps, Slate, Meagher & Flom LLP

Please note that continuing legal education credits are not available for this program.

While speakers will discuss the settlement and its implications, they will not review all aspects of it in detail, so participants may wish to familiarize themselves with the settlement in advance of the conference.

Resources:

The Settlement Agreement (dated Oct. 28, 2008) is available through the Authors Guild settlement resources web page at http://www.authorsguild.org/advocacy/articles/settlement-resources.html.

If you don't have time to read the entire settlement, the English language notice to rightholders, which can be accessed from the settlement home page, provides a helpful description: http://www.googlebooksettlement.com/.

Another good resource is the FAQs on the settlement website, which are closely related to the Qs and As in the Notice:
http://www.googlebooksettlement.com/help/bin/answer.py?answer=118704&hl=en

A short summary of the settlement can be found in the joint press release of the parties:
http://www.publishers.org/main/Copyright/Google/Release.htm

A summary of the settlement by Jonathan Band from the perspective of libraries is available at: http://www.arl.org/pp/ppcopyright/google/