The University of California Libraries, one of Google’s book-scanning partners, are at work on negotiating an amended version of the agreement, much as Michigan, Texas, and Wisconsin have done. The Libraries have posted : a statement codifying some of its “understandings” about the settlement.
The statement runs through a list of eleven issues which are ambiguous or absent in the settlement but the library community cares about. It then explains what UCL “understands” Google to have promised to resolve those issues. In some cases, the understandings cover the concerns pretty comprehensively, e.g.:
(2) In the Settlement Agreement, Google has reserved the right to exclude up to 15% of books from the corpus. Notwithstanding this provision, we understand that
Google does not intend to exclude books of any kind from the corpus for editorial or non- editorial reasons;
Should Google exclude some books for editorial reasons in future, it will publicly post a list of books that are excluded;
The Fully Participating Libraries have the right to take the Library Digital Copy (LDC) of books that are excluded for editorial reasons and make them available through another provider under the same Settlement terms that govern Google as a provider.
In other cases, the document shifts, tellingly, from “we understand” to “we strongly urge”:
(9) With regard to both the commercial and the institutional subscription versions of Google Book Search, we understand that Google is developing standards of confidentiality that will apply to collection and use of personally identifiable data on Book Search usage. We strongly urge Google to adopt strict standards. We also strongly urge the library or libraries that manage the non-consumptive research corpus to adopt the strictest possible standards of confidentiality for all uses of the research corpus and any pertinent products and services.
Of course, with only a few exceptions, neither the “understand” nor the “strongly urge” terms are contractually or judicially enforceable promises. They’re commitments that the library community wants to hold Google to by making it extremely uncomfortable for Google should it try to back off from them. (Salil Mehra, in a fascinating work in progress, is suggesting that the Federal Trade Commission may have an important role to play in making these non-promissory statements of intention enforceable in this and other network effects situations.)
Let me briefly summarize the eleven points, since they’re fairly significant. I’ll leave the actual commitments in roman type, but italicize the “strongly urges.”
Google plans to scan everything it can, rather than deliberately excluding some books.
Google has the right to exclude some books from its services, but doesn’t currently plan to, and will be transparent about it if it ever changes its mind.
“Removal” from Google’s corpus really does mean “removal.”
Google will still push for orphan works reform and will share what it learns about the orphan status of specific books.
Google won’t try to put private restrictions on any public-domain books.
Google will support authors’ and publishers’ choices to make their books open access.
Google will always make book search and 20% preview available for free.
Google will make its library subscriptions work like other subscriptions libraries are familiar with, using similar licensing terms.
Google should adopt strict standards to protect reader privacy.
Google won’t transfer its rights under the settlement without also transferring its obligations.
Google should build in additional pricing safeguards to protect public access and the Registry should transparently represent academic authors and scholarly publishers.
The statement is an important map to the current landscape on the intellectual-freedom, open-access, and public-interest issues of paramount interest to researchers, scholarly publishers, and academic libraries.