Category Archives: Section 4.1

S 04.1

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Institutional Subscriptions.

Also posted in Article 04, Settlement | Comments closed

S 04.1.1

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(a) General Guidelines for Pricing of Institutional Subscriptions.

Also posted in Article 04, Section 4.1(a), Settlement | Comments closed

S 04.1.1.1

One response to “S 04.1.1.1”

  1. I like Matthew Sag’s comment on this section, in one of his presentations on YouTube: “This of course makes no sense. These twin objectives, maximising revenue and maximising public access, can only be consistent up to to a point. At the end of the day, Google and the Registry have to choose one or the other as their primary objective.”

(i) Objectives. The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(i) | Comments closed

S 04.1.1.2

2 responses to “S 04.1.1.2”

  1. Deven Desai says:

    The pricing system requires more general commentary. In short, whether this system is fair or a wise approach for all concerned (e.g., readers, small institutions, entrepreneurs and innovators) is questionable.

    Let’s begin with this phrase: “Google and the Registry will use the following parameters to determine the price of Institutional Subscriptions: pricing of similar products and services available from third parties”

    This language seems like stock deal language that may work well in an established industry where customs can be used to guide the deal. As Pam Samuelson and others have noted, “This settlement will transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books. How audacious is that?” As such, the deal seems to lack any real sense of what pricing will be in place.

    Of course the other parameters will matter, but the general nature this clause is troubling. I still need to read the Plan of Allocation (which is oddly obscure way of referring to the plan for the money at issue) more closely but that material does not appear to address the vague nature of this clause. In addition, of course costs could change but the mechanism for determining that cost must be studied and clarified.

  2. Deven Desai says:

    One other issue: the quality of the scan idea seems to me like a lesson taken from the recording industry. Is this language about purposefully degrading images or is it about whether a scan comes out well? It seems odd that the claim is to examine hundreds of thousands of books and determine price in a fine-grained way when the rest of the deal aims to have broad licensing systems in place.

(ii) Parameters. Google and the Registry will use the following parameters to determine the price of Institutional Subscriptions: pricing of similar products and services available from third parties, the scope of Books available, the quality of the scan and the features offered as part of the Institutional Subscription. Plaintiffs and Google expect that the number of Books available through an Institutional Subscription will change over time. As such, the value and price of Institutional Subscriptions may also change over time.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(ii) | Comments closed

S 04.1.1.3

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(iii) FTE Basis. Pricing will be based on FTEs (Full-Time Equivalency). For Higher Education Institutions, FTE is defined as full-time equivalent students.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(iii), Settlement | Comments closed

S 04.1.1.4

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(iv) Pricing Bands. FTE-based pricing, including pricing bands, may vary across broad categories of institutions. The categories are:

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(iv), Settlement | Comments closed

S 04.1.1.4.1

5 responses to “S 04.1.1.4.1”

  1. Deven Desai says:

    Corporate subscription models may pose threats to innovation and entrepreneurial activities (this becomes a toll for information and works where congestion is not necessarily a problem).

  2. Say more. How does offering a subscription pose more threats to innovation than not offering one would?

  3. Deven Desai says:

    It is difficult to know exactly how this product (if that is what is) will function. Imagine if Google has stayed with its initial offering. More folks could have come in and played with the information for a host of reasons and opened up new possibilities. The Settlement, as a general matter, seems to lock down many ways one could use this information. James, have you looked at the linking restrictions? As far a corporate pricing goes, it will be highly difficult for anyone to compete in this arena. I am saying that the vague corporate language may be O.K. or may be a way to claim that any corporate entity (non-profits seem oddly absent from the Settlement for example) must pay fee (possibly huge) just to gain access. That is something to think about when we are looking at this much information.

  4. Deven Desai says:

    So apparently Einer Elhauge has a paper, WHY THE GOOGLE BOOKS SETTLEMENT IS PROCOMPETITIVE arguing for that the deal is good for competition. Brett Frischmann pointed me to it. I have to read it, but I still wonder whether folks are assuming facts that may be true once the deal is executed. Brett also noted Matt Sag’s paper THE GOOGLE BOOK SETTLEMENT AND THE FAIR USE COUNTERFACTUAL.

  5. Einer’s paper; Matthew’s paper. Einer’s paper makes some factual mistakes about the settlement, but a lot of the analysis is very good indeed. Matthew’s paper is less ambitious (though I understand he’s hard at work extending its intellectual ambitions), but he does a very good job at walking through the way the settlement fits together and how it changes the status quo.

    Deven, what do you mean by “more people could have come in and played with this information” mean? Has Google in some way foreclosed them from doing so? Not in any way that I can see. The settlement locks down only what Google does with its scans. That’s why I have a hard time getting really upset about some of the limitations the settlement places on Google; the corpus of books is still less encumbered than it was when it just existed on paper.

    I think there is a serious antitrust risk with the settlement, but that risk has more to do with Google getting to play fast and loose with copyright law while no one else does.

(1) Corporate (may include per seat licensing in addition to FTE);

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(1), Settlement | Comments closed

S 04.1.1.4.2

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(2) Higher Education Institutions, which will be sub-divided into sub-categories based on the Carnegie Classifications for Institutions of Higher Education within the United States;

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(2), Settlement | Comments closed

S 04.1.1.4.3

6 responses to “S 04.1.1.4.3”

  1. Deven Desai says:

    Excluding K-12 seems to be a devastating blow to poor school districts and innovative teachers trying to find the best material for their students. Is this clause a censorship clause? Is it designed to protect textbook publishers? What is the purpose here?

  2. My understanding of this provision is that the idea is to allow subscriptions to schools, but not access from home. I suppose the reason might be that so many families have kids in school that this would mean K-12 access would almost be “everyone” access. But it does limit some innovative uses — no using the subscription for homework, for example.

  3. Deven Desai says:

    Maybe. Still it seems odd that the Registry makes this decision.

  4. That’s the glass half-empty way of looking at it; saying “at least they left the possibility open” is the glass half-full way. Both are true.

  5. benjamin says:

    Why does Google give institutions of higher learning free access based on the number of students and classification (see Section 4.8), but limit k-12 schools [see Section 4.1(a)(iv)(3)] by requiring Registry approval? This doesn’t seem to match up with Google’s stated goals.

  6. We may be seeing the negotiating influence of the copyright owners here. Google would like to sell through as many channels as possible; they may want more limits.

(3) School (K-12) (no remote access without Registry approval);

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(3), Settlement | Comments closed

S 04.1.1.4.4

One response to “S 04.1.1.4.4”

  1. Deven Desai says:

    Why limit government access at all? Again what is the idea behind this limit?

(4) Government (no remote access without Registry approval) (may include per seat licensing in addition to FTE);

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(4), Settlement | Comments closed

S 04.1.1.4.5

2 responses to “S 04.1.1.4.5”

  1. Deven Desai says:

    The objective is to “realiz[e] broad access to the Books by the Public,” but the deal categorically limits it unless the Registry approves. Inconsistent. Also did I miss something or is Public undefined in the Settlement Terms?

  2. You’re right; “Public” is undefined. Much in this settlement depends on the good faith and competence of the Registry.

(5) Public (no remote access without Registry approval); and

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(iv)(5), Settlement | Comments closed

S 04.1.1.4.6

4 responses to “S 04.1.1.4.6”

  1. Deven Desai says:

    This clause reveals that the true goal is to divide up the world and charge as much as possible at each level. Public access to the information is not a real concern. That being said there may be arguments as why one should take a licensing approach. Those argument need to made clearly and prove that this model is the best one.

    For example, one could have the snipets search for many books or one could allow a user to see pages with specific search terms plus or minus one page on either side of the key page. If the user wanted the book, the user could then buy it, obtain it from a library, or someone may enter the market and offer it on demand (this could be the publisher or another party with rights). The problem is that the Settlement conflates the users searching for books and wanting the entire book and users who want only a portion of the book for research or other reasons. Charging for access to some of these uses is not necessarily beneficial. Put differently the case must be made that this model is the best way to meet the alleged objectives and that the other stakeholders who are not acknowledged are also served.

  2. Don’t forget the standard argument that price discrimination in intellectual property permits greater overall access than a single price would. (That it happens to shift consumer surplus to the producer is just a . . . side effect.)

    On the substance, I don’t know that the proper burden of proof lies with the proponents of the settlement on this issue. They had to show that it’s a good deal for copyright owners and the public compared with the status quo. That leaves it up to opponents to come forward and show that other models would be better.

  3. Deven Desai says:

    Standard yes. Proven? And what about Benklerish ideas of Wealth of Networks? To say it is better than status quo is a red herring. Status quo never contemplated the openness nor could it see the possibility Google is offering. The claim that is good, trust us, is indeed one they should support with models and more. Seems quite a gift to say well prove us wrong and puts the emphasis on the wrong party. And I think that your claim about pricing relies on competition. If there is not competition, then your standard claim is in trouble, correct?

  4. Actually, my claim about pricing is (even potentially) true only in the absence of competition. It depends on the existence of copyright’s exclusive rights. In a fully competitive environment, price discrimination is impossible because all prices fall to marginal cost.

    My point about the burden of proof is that if you think the settlement is sub-optimal, say what would be better.

(6) Additional categories, as agreed between Google and the Registry. Subdividing the market into additional categories may be one mechanism used to ensure broad accessibility of Books to end users.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(iv), Section 4.1(a)(iv)(6), Settlement | Comments closed

S 04.1.1.5

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(v) Versions of Institutional Subscriptions. When Google offers any Institutional Subscription, Google will offer a version of the Institutional Subscription that provides access to all Books available for Institutional Subscriptions pursuant to this Amended Settlement Agreement (the “Institutional Subscription Database”) for a fee. In addition, Google may identify Institutional Subscriptions for a small number of discipline-based collections of Books that Google would offer as an alternative to the version of the Institutional Subscription that provides access to the entire Institutional Subscription Database. To provide an incentive for institutions to subscribe to the entire Institutional Subscription Database, Google shall design the pricing of the different versions of the Institutional Subscription such that the price for access to the entire Institutional Subscription Database will be less than the sum of the prices for access to the discipline-based collections.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(v), Settlement | Comments closed

S 04.1.1.6

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(vi) Pricing Strategy. Prior to beginning to sell Institutional Subscriptions, Google shall propose an initial pricing strategy and, thereafter, Google shall propose subsequent pricing strategies, consistent with the objectives set forth in Section 4.1(a)(i) (Objectives) (each, a “Pricing Strategy”), to the Registry.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Settlement | Comments closed

S 04.1.1.6.1

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(1) Elements of Pricing Strategy. Each Pricing Strategy shall include:

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Settlement | Comments closed

S 04.1.1.6.1.1

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a) Any discipline-based collections that would be offered as an Institutional Subscription, as an alternative to the version of the Institutional Subscription that provides access to the entire Institutional Subscription Database.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(a), Settlement | Comments closed

S 04.1.1.6.1.2

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b) A target retail price for each Institutional Subscription for each of the classes of institutions identified in Section 4.1(a)(iv) (Pricing Bands), including Institutional Subscriptions for each of the discipline-based collections that may be offered, Institutional Subscriptions that provide access to the entire Institutional Subscription Database, and any Limited Subscriptions.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(b), Settlement | Comments closed

S 04.1.1.6.1.3

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c) The period of time over which Google will have the authorization to sell the versions of the Institutional Subscription at such target retail prices.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(c) | Comments closed

S 04.1.1.6.1.4

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d) Any expected increases or decreases in the price of each version of the Institutional Subscription at annual anniversary points during the period in which the then-current Pricing Strategy will be in effect.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(d), Settlement | Comments closed

S 04.1.1.6.1.5

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e) The amount of discount, if any, that Google is authorized to offer to institutions and to Institutional Consortia.
Any discounts above the approved discount require Registry approval.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(e), Settlement | Comments closed

S 04.1.1.6.1.6

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f) The Price Change Cut Off Date.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(1), Section 4.1(a)(vi)(1)(f), Settlement | Comments closed

S 04.1.1.6.2

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(2) Discounting. The initial Pricing Strategy will also include a discount from the List Prices that will be offered for a limited period of time to subscribers. This discount will be defined against the List Price and is designed to encourage potential customers to subscribe. The period for an initial discount will be included in the initial Pricing Strategy.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(2), Settlement | Comments closed

S 04.1.1.6.3

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(3) Duration. The period for the initial Pricing Strategy to be in effect is expected to be between two (2) and three (3) years. Google and the Registry shall agree as to the periods for which subsequent Pricing Strategies will be in effect.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(3), Settlement | Comments closed

S 04.1.1.6.4

Comments are closed.

(4) Process.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(4), Settlement | Comments closed

S 04.1.1.6.4.1

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a) Initial Pricing Strategies. The initial Pricing Strategy must be agreed upon by Google and the Registry before Google sells any Institutional Subscriptions. Google shall submit aproposed initial Pricing Strategy to the Registry by no later than one year after the Effective Date. Following submission of the initial Pricing Strategy, Google and the Registry shall negotiate for a period of up to one hundred and eighty (180) days. If, after one hundred and eighty (180) days (or earlier, as mutually agreed), Google and the Registry do not reach agreement on the initial Pricing Strategy, the dispute shall be resolved pursuant to Article IX (Dispute Resolution).

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(4), Section 4.1(a)(vi)(4)(a), Settlement | Comments closed

S 04.1.1.6.4.2

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b) Subsequent Pricing Strategies. Google shall submit subsequent proposed Pricing Strategies to the Registry at least ninety (90) days prior to the expiration of the then-current Pricing Strategy, and Google and the Registry shall negotiate for a period of up to ninety (90) days. If, after ninety (90) days (or earlier, as mutually agreed), Google and the Registry do not reach agreement on such proposed Pricing Strategy, the dispute shall be resolved pursuant to Article IX (Dispute Resolution). In the event of such a dispute, the then-current Pricing Strategy will continue to apply unless and until the earlier of (1) Google and the Registry agreeing on a subsequent Pricing Strategy or (2) the Arbitrator rendering a Decision.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vi), Section 4.1(a)(vi)(4), Section 4.1(a)(vi)(4)(b), Settlement | Comments closed

S 04.1.1.7

Comments are closed.

(vii) Comparable Products and Services. FTE-based prices in the initial Pricing Strategy will be based upon then-current prices for comparable products and services, surveys of potential subscribers, and other methods for collecting data and market assessment. Google shall be responsible for collecting data comparing the target retail prices for the versions of the Institutional Subscription to the prices of similar products and services (including by use of a third party tocollect such data if the Registry requests that Google use a third party, which third party will be subject to the Registry’s approval not to be unreasonably withheld or delayed) and shall provide such data to the Registry.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(vii), Settlement | Comments closed

S 04.1.1.8

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(viii) Adjustments to Pricing Strategy.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(viii), Settlement | Comments closed

S 04.1.1.8.1

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(1) Google Proposed Adjustments. Google may propose adjustments to the then-current agreed upon Pricing Strategy. If Google and the Registry cannot agree to a change to the Pricing Strategy after negotiating for a period of sixty (60) days after Google’s notice of its proposal for adjustments, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution) consistent with the objectives set forth in Section 4.1(a)(i) (Objectives). Such sixty (60)-day period may be changed by mutual written agreement of Google and the Registry. In the event of such a dispute, the then-current price will continue to apply unless and until the earlier of (a) Google and the Registry agreeing to changes to the Pricing Strategy or (b) the Arbitrator rendering a Decision; provided, however, that Google and the Registry may agree, or an Arbitrator pursuant to Article IX (Dispute Resolution) may require, that the new pricing be retroactive to sixty (60) days after the date of Google’s notice of adjustments to the then-current agreed upon Pricing Strategy.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(viii), Section 4.1(a)(viii)(1), Settlement | Comments closed

S 04.1.1.8.2

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(2) Registry Proposed Adjustments. The Registry may propose adjustments to the then-current agreed upon Pricing Strategy. If Google and the Registry cannot agree to a change to the Pricing Strategy after negotiating for a period of sixty (60) days after the Registry’s notice of its proposal for adjustments, then the dispute shall be resolved pursuant to Article IX (Dispute Resolution) consistent with the objectives set forth in Section 4.1(a)(i) (Objectives). Such sixty (60)-day period may be changed by mutual written agreement of Google and the Registry. In the event of such a dispute, the then-current price will continue to apply unless and until the earlier of (a) Google and the Registry agreeing to changes to the Pricing Strategy or (b) the Arbitrator rendering a Decision. If the renegotiation of the Pricing Strategy concludes, or if the Arbitrator renders a Decision, prior to the Price Change Cut Off Date, then any increase in the price resulting from the renegotiation or Decision will take effect for the academic year first starting after the Price Change Cut Off Date. If the renegotiation of the Pricing Strategy concludes, or if the Arbitrator renders a Decision, on or after the Price Change Cut Off Date, then any price increase will take effect not for the academic year first starting after the Price Change Cut Off Date, but in the next following academic year. In addition, any price increase will not apply to any then-existing subscriber contracts until they are renewed or extended. “Price Change Cut Off Date” means a date that is prior to the commencement of the academic year first starting after such date and that is set to provide Google with a reasonable period of time within which to sell the Institutional Subscription for that academic year without an intervening price increase for Institutional Subscriptions, which period of time reasonably approximates the typical sales cycle for comparable products and services.

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(viii), Section 4.1(a)(viii)(2), Settlement | Comments closed

S 04.1.1.9

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(ix) Adjunct Products. Google will inform the Registry of any Google Products and Services that Google offers for a fee as an adjunct to any Institutional Subscription or (if Google and the Registry agree to offer Consumer Subscriptions) Consumer Subscription, which product or service meets the following conditions:

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(ix), Settlement | Comments closed

S 04.1.1.9.1

Comments are closed.

(1) the preponderance of the value of such product or service tousers of the subscription is realized through access to Books through suchsubscription, and

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(ix), Section 4.1(a)(ix)(1), Settlement | Comments closed

S 04.1.1.9.2

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(2) such product or service exploits access to Books by users of the subscription in a manner that could not, with similar efforts, be similarly exploited by other entities ((1) and (2) together, an “Adjunct Product”).

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(ix), Section 4.1(a)(ix)(2), Settlement | Comments closed

S 04.1.1.9.3

Comments are closed.

(3) The Registry will have the right immediately to renegotiate and, if necessary, resolve pursuant to Article IX (Dispute Resolution), with Google the prices of the applicable Institutional Subscription(s) or Consumer Subscription(s) with which such Adjunct Product is used under the procedures set forth in Section 4.1(a)(viii) (Adjustments to Pricing Strategy), which revised prices will apply prospectively only. Google, at its sole discretion, may choose to remove access to Books as part of the Adjunct Product or modify the Adjunct Product in a manner that ensures that conditions in clauses (1) and (2) above are no longer met if Google wishes to avoid the Registry’s option of renegotiating or resolving pursuant to Article IX (Dispute Resolution). Renegotiation and resolution pursuant to Article IX (Dispute Resolution), as set forth in this Section4.1(a)(ix) (Adjunct Products), shall be the Registry’s sole remedy and Google’s sole obligation for disputes under this Section 4.1(a)(ix) (Adjunct Products).

Also posted in Article 04, Section 4.1(a), Section 4.1(a)(ix), Section 4.1(a)(ix)(3), Settlement | Comments closed

S 04.1.2

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(b) Institutional Consortia. Google may work through Institutional Consortia to sell Institutional Subscriptions.

Also posted in Article 04, Section 4.1(b), Settlement | Comments closed

S 04.1.3

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(c) Intermediaries. Google may work through intermediaries to sell Institutional Subscriptions, subject to Registry approval, which approval shall not be unreasonably withheld or delayed.

Also posted in Article 04, Section 4.1(c), Settlement | Comments closed

S 04.1.4

One response to “S 04.1.4”

  1. Deven Desai says:

    So I know others have mentioned privacy concerns, but this clause seems to raise them starkly. Insofar as people have fought to allow libraries not to track what one reads, this system seems to require tracking of precisely who reads what. If people are using this system as a library (which is in fact part of the idea), then this provision seems to require further thought.

(d) Basic Features of Institutional Subscriptions. Institutional Subscriptions will enable users to view, copy/paste, and print pages of a Book, and may enable Book Annotations. With respect to copy/paste, the user will not be able to select, copy and paste more than four (4) pages of the content of a Display Book with a single copy/paste command. Printing will be on a page-by-page basis or a page range basis, but the user will not be able to select a page range that is greater than twenty (20) pages with one print command for printing. Google will include a visible watermark on pages printed from the Institutional Subscription Database, which identifies the material as copyrighted and displays encrypted session identifying information provided by the subscribing institution during such session, and which could be used to identify the authorized user that printed the material or the access point from which the material was printed. Such watermark will not obscure the content of the printed pages.

Also posted in Article 04, Section 4.1(d), Settlement | Comments closed

S 04.1.5

2 responses to “S 04.1.5”

  1. Deven Desai says:

    (4) not prohibit any uses of Books or Inserts that would otherwise be permitted under the Copyright Act without the need for express authorization from the Rightsholder

    This clause seems to be a nod to fair use, but I wonder if it has any teeth. Given the literature about fair use’s problems as a doctrine, I am not certain this clause does much work. Still, it at least appears to acknowledge the idea of copyright law’s role in some of this deal.

    (5) include the right for Google to restrict or terminate a user’s account, including additional restrictions on printing and copy/paste, if the user distributes the copyrighted material from a Book in a manner that is prohibited by the terms and conditions or applicable law

    This clause seems to reinvent notice and take down problems that occur under the DMCA. It further raises the complication that one has to check with the contract and the copyright law to see what one can do with the book. The literature about the pros and cons of contract as way to govern copyrighted material seems to be required here.

  2. I think this is more of a three-strikes-you’re out problem than a notice-and-takedown problem.

(e) Institutional Subscription Terms and Conditions. In its terms and conditions applicable to Institutional Subscriptions, (i) Google will (1) limit access to Books to appropriate individuals within the subscriber institution (e.g., in the case of educational institutions, faculty, students, researchers, staff members, librarians, personnel and business invitees of the subscriber and walk-in users from the general public; in the case of corporate or government offices, personnel and business invitees; and, in the case of Public Libraries, library patrons and personnel), (2) permit users to view, copy/paste, and print pages of Books only to the extent authorized under this Amended Settlement Agreement, (3) permit users to make available the Books and Inserts in the Institutional Subscription Database to other users of that Institutional Subscription through hyperlinks, or similar or appropriate technology, when such Books and Inserts are served by Google, for course use (e.g., e-reserves and course management systems), only to the extent authorized under this Amended Settlement Agreement, (4) not prohibit any uses of Books or Inserts that would otherwise be permitted under the Copyright Act without the need for express authorization from the Rightsholder, and (5) include the right for Google to restrict or terminate a user’s account, including additional restrictions on printing and copy/paste, if the user distributes the copyrighted material from a Book in a manner that is prohibited by the terms and conditions or applicable law, and (ii) Google may enable Book Annotations. Prior to Google’s initial launch of the Institutional Subscription, Google will provide to the Registry a copy of the terms and conditions applicable to any Institutional Subscriptions offered by Google.

Also posted in Article 04, Section 4.1(e), Settlement | Comments closed

S 04.1.6

2 responses to “S 04.1.6”

  1. Deven Desai says:

    Time limits on the access pose interesting issues. Unlike JSTOR, Lexis, and Westlaw, where one can obtain a personal use copy of the work and use it when away from an authorized terminal or account, this system (I think) does not allow such downloads or uses. So one is now in a world of pay-to-read or perpetual licensing for content, correct? The answer may be that one has to buy the book to be able to use it more robustly. Yet, given the annotation functions that may occur (and need to be examined) it seems that like Kindle criticisms, this system allows someone to be cut-off from works and perhaps lose one’s personal notes that are connected to the works (i.e., when one loses access to the work, one also loses access to one’s annotations).

  2. We are in such a world, yes. The settlement does leave open New Revenue Models: print-on-demand, in particular, creates explicitly non-time-limited possibilities. But that’s not activated by default.

(f) Subscriber Experience. The experience and rights provided to subscribers and their users under Institutional Subscriptions will be no less favorable to them than the experience and rights offered in the Consumer Purchase, except that such experience and rights will be time-limited to the duration of the Institutional Subscription. In addition, and without limiting the foregoing, Institutional Subscriptions must permit searching the full text of Books in the Institutional Subscription Database and, in the case of Higher Education Institutions, permit users to make available the Books and Inserts in the Institutional Subscription Database to other users of the Institutional Subscription through hyperlinks, or similar or appropriate technology, as described in Section 4.1(e) (Institutional Subscription Terms and Conditions).

Also posted in Article 04, Section 4.1(f), Settlement | Comments closed

S 04.1.7

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(g) Beta Testing. Google may provide Institutional Subscriptions to a limited number of institutions as a beta product free of charge prior to the initial launch. Unless otherwise agreed by the Registry, Google shall be authorized to offer Institutional Subscriptions in beta form to up to five (5) Fully Participating Libraries and Cooperating Libraries, up to two (2) Public Libraries, up to two (2) not-for-profit institutions within each of the Carnegie Classifications for Institutions of Higher Education within the United States and, as agreed between Google and the Registry, other libraries. At least one institution from each such category of institutions shall be included in the beta-test group. Google shall provide to the Registry all pricing-related data collected from these beta-test partners to assist in the pricing for the versions of the Institutional Subscriptions. Once the beta Institutional Subscription is launched, Google shall be able to continue to support then-existing beta customers until the earlier of (i) two (2) years from the launch of the beta product (unless a longer period of time is agreed by the Registry) or (ii) launch of the Institutional Subscription.

Also posted in Article 04, Section 4.1(g), Settlement | Comments closed