The morning keynotes were followed by three panel discussions on "The Future of 'Books'"; "Authors and Incentives"; and "The Public Interest." A panelist would be asked a question and given 2 minutes to respond, and a new question-would be posed to the next panelist. After two rounds of questions and a general free-for-all among the panelists, the discussion was thrown open to the floor. This makes it hard to summarize the information in any one panel, especially since the questions were huge: "Professor Darnton: summarize your long, thoughtful NYRB essay in 2 minutes..." Instead, I will pick and chose among some of the themes that emerged from all the discussions.
In the panel on the Future of the Book, Richard Sarnoff explained that in the settlement, the authors and publishers were worried about the waning respect for copyright and so consciously sought to create a mechanism for using out-of-print books that respected copyright. To me, it sounded like he wanted to make sure that the royalty and control mechanisms that had worked successively in the print world to incentivize the creation of some works would continue when Google was the publisher - even though there are lots of reasons to think the business models based on shipping atoms around fail when they are applied to bits.
The fear of what these outsiders (Google and the Registry) will do to traditional practices was echoed in several other presentations. People just don't know what this will mean for publishers: trade, STM, and academic, or even for reproduction rights organizations. There will be new relationships between authors and publishers because of the settlement, and the Registry will reign supreme. There seemed to be a lot of concern from the audience that the Registry has no bylaws, no public means of selecting members, no guaranteed international participants (even though all international authors and publishers are swept into the settlement). Adler's response: NY State law will govern it and ensure that the public interest is protected. My analysis: the upcoming wars between authors and publishers are going to be fierce. I wish I could get into the copyright termination business - with money on the table, there is now a reason for everyone to do it.
Throughout the day, those involved in the settlement sought to sing its praises. I was struck by Allan Adler's defense of the settlement against those who object that it merely rewards Google for its perfidy. One interesting suggestion: that an institutional subscription model for the in-copyright stuff is in the works. This could be much more valuable to libraries (and cause havoc among other aggregators). The litigators for the authors and publishers were incredibly sharp - and not anyone that I would care to cross. At one point during the day, the very interesting observation was made that there was no reason that this needed to be a class action - the aggrieved publishers could have pursued court action on their own and got a settlement. Others pointed out that class actions are normally used for addressing past injustices - and not establishing a new business model. Michael Boni, the lead counsel for the Authors Guild, dismissed both of these assertions. He also maintained that the court had limited authority to alter the terms of the settlement - this is a take-it or leave-it deal. In response to a complaint that the process is too rushed, he said that the notification timeline is much longer than in most class action suits.
Orphan works continued to loom as an issue, and several participants thought that we still needed orphan works legislation in spite of the settlement.
One other bit of news: Alex Macgillivrary from Google said that Google would make public information on any title it decided it needed to pull from an institutional subscription (rather than just reporting such titles to the Registry, as the settlement demands).
I sensed throughout the day a tremendous displeasure with the process used to reach the settlement agreement. There were questions about whether litigation is an appropriate substitute for legislation; whether the settlement reflected the economic interests of the people at the table rather than the entire class; whether the Registry will operate to the benefit of all the members of the class or only certain types of authors and publishers; and what checks there might be on the greed of the participants. (They have already taken for themselves the royalties due on orphan and public domain works. Who knows what they will do with public and institutional pricing?) Macgillivrary acknowledged the role that some libraries had played in shaping the settlement to protect the public interest, but libraries weren't part of the formal settlement and the libraries that participated may have had a financial interest in not antagonizing Google. Most librarians would say, therefore, that the profession played no meaningful role in shaping the settlement.
Yet while there may be great disappointment with the process used to generate the settlement, I also detected no incipient revolution against the settlement itself. No one was calling for rights holders to register and submit comments to the court (as they can do until 5 May). No one was saying the court should reject it and tell the parties to start over. Yes, the class may be too large and the mechanism too crude, but we created this problem when we abandoned formalities, lengthened copyrights, and started treating every copyrighted item in the world like it was a Disney movie. Given this procrustean bed we have made for ourselves, the settlement may be our only way out. Yes, Congress should create a compulsory license authorizing the use of out-of-print books - but don't hold your breadth waiting for that. In the interim, the settlement may be the best we can hope for - even though it has the potential to radically alter all of our worlds.