What's next for "Google's" Book Rights Registry?

Judge Denny Chin's order came down today; he decided NOT to approve the "Amended Settlement Agreement" (ASA) that would have ended the lawsuit between Google, the Authors Guild, and the AAP.  (The decision is only 48 pages, shorter than Chin's senior thesis.) What happens next?

There is speculation that the rejection will be appealed; apparently, Chin must give his permission for an appeal to proceed. (update: or maybe not). Another possibility is that the parties will go back and try to renegotiate a new settlement along the lines suggested by Judge Chin.

In the end, I conclude that the ASA is not adequate, fair, and reasonable. As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an "opt-out" settlement to an "opt-in" settlement. (See, e.q., DOJ SO1 23, ECF No. 922; Internet Archive Mem. 10, ECF No. 811). I urge the parties to consider revising the ASA accordingly.

I'm guessing, based on Judge Chin's fairly broad and terse rejection of the settlement's key terms, that a settlement will have to start at square one; even given the AAP statement:

While the March 22 decision of U.S. District Court Judge Denny Chin on the Google Book Settlement Agreement that was filed on November 13, 2009 is not the final approval we were hoping for, it provides clear guidance to all parties as to what modifications are necessary for its approval. The publisher plaintiffs are prepared to enter into a narrower Settlement along those lines to take advantage of its groundbreaking opportunities. We hope the other parties will do so as well.

One provision of the settlement that has had broad support, even from opponents of the agreement, is the Book Rights Registry. This is essentially a huge database of rights information that has been accumulated by the plaintiff's attorneys. While it's often referred to as "Google's Book Rights Registry", and it was set up with assistance from Google, it doesn't belong to Google at all.

Michael Healy, the "Executive Director Designate" of the Book Rights Registry, as been working on the registry for almost two years, writing specifications, answering inquiries from confused rights-holders, and waiting for a decision from the court before he can proceed to make it a functioning entity. What will become of this almost-there resource, now that the settlement has been rejected?

Here's one possibility: the plaintiffs could establish a book rights registry with or without Google.

Clearly, the plaintiffs and their attorneys have run up a huge legal bill for this lawsuit. They've been expecting an infusion of $34.5 million to set up the registry and another $30 million for attorney's fees. It's not clear how much has been spent on the registry so far, but it has registered claims for about 1.1 million books. This is potentially a very valuable resource, which, if put into play could greatly increase the possibilities for transactions of book rights.

One possibility is that as part of a side deal, the plaintiffs together with Google arrange to put the registry into operation, presumably with some cash from Google. I do not know if such an arrangement would be legal.  Another possibility is that the database is offered to investors who would set up a rights clearance business. The cash from the sale could help the plaintiffs continue the suit.

The opposite possibility is depressing, but not unlikely. The entanglement of the rights information with Google's proprietary information could be so deep that a functional Book Rights Registry would have to be started from scratch, and the ebook industry is locked into a continuing effort at cleaning up the rights mess.

Notes:

1. Follow all the Settlement news at The Public Index.
2. Although Gluejar's effort to unglue ebooks will be hampered by the absence of a Book Rights Registry, there will be an even greater need for efforts such as ours that offer a path to increased access to books.
3. James Grimmelmann's summary of the decision is required reading.

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Google Exposes Book Metadata Privates at ALA Forum

At the hospital, nudity is no big deal. Doctors and nurses see bodies all the time, including ones that look like yours, and ones that look a lot worse. You get a gown, but its coverage is more psychological than physical!

Today, Google made an unprecedented display of its book metadata private parts, but the audience was a group of metadata doctors and nurses, and believe me, they've seen MUCH worse. Kurt Groetsch, a Collections Specialist in the Google Books Project presented details of how Google processes book metadata from libraries, publishers, and others to the Association for Library Collections and Technical Services Forum during the American Library Association's Midwinter Meeting.

The Forum, entitled "Mix and Match: Mashups of Bibliographic Data", began with a presentation from OCLC's Renée Register, who described how book metadata gets created and flows though the supply chain. Her blob diagram conveyed the complexity of data flow, and she bemoaned the fact that library data was largely walled off from publisher data by incompatible formats and cataloging practice. OCLC is working to connect these data silos.

Next came friend-of-the-blog Karen Coyle, who's been a consultant (or "bibliographic informant") to the Open Library project. She described the violent collision of library metadata with internet database programmers. Coyle's role in the project is not to provide direction, but to help the programmers decode arcane library-only syntax such as "ill. (some col)". The one instance where she tried to provide direction turned out to be something of a mistake. She insisted that, to allow proper sorting, the incoming data stream should try to keep track of the end of leading articles in title strings. So for example, "The Hobbit" should be stored as "(The )Hobbit". This proved to be very cumbersome. Eventually the team tried to figure out when alphabetical sorting was really required, and the answer turned out to be "never".

Open Library does not use data records at all, instead, every piece of data is typed with a URI. This architecture aligns with W3C web standards for the semantic web, and allows much more flexible searching and data mining than would be possible with a MARC record.

Finally, Groetsch reported on Google's metadata processing. They have over 100 bibliographic data sources, including libraries, publishers, retailers and aggregators of review and jacket covers. The library data includes MARC records, anonymized circulation data and authority files. The publisher and retailer data is mostly ONIX formatted XML data. They have amassed over 800 million bibliographic records containing over a trillion fields of data.

Incoming records are parsed into simple data structures which looked similar to Open Library's, but without the URI-ness. These structures are than transformed in various ways for Googles use. The raw metadata structures are stored in an SQL-like database for easy querying.

Groetsch then talked about the nitty-gritty details of data. For example, the listing of an author on a MARC record can only be used as an "indication" of the authors name, because MARC gives weak indications of the contributor role. ONIX is much better in this respect. Similarly, "identifiers" such as ISBN, OCLC number, LCCN, and library barcode number are used as key strings but are only identity indicators with varying strengths. One ISBN with a chinese publisher prefix was found on records for over 24,000 different books; ISBN reuse is not at all uncommon. One librarian had mentioned to Groetsch that in her country, ISBNs are pasted onto a book to give it a greater appearance of legitimacy.

Echoing comments from Coyle, Groetsch spoke with pride of the progress the Google Books metadata team has made in capturing series and group data. Such information is typically recorded in mushy text fields with inconsistent syntax, even in records from the same library.

The most difficult problem faced by the Google Books team is garbage data. Last year, Google came under harsh criticism for the quality of its metadata, most notably from Geoffrey Nunberg. (I wrote an article about the controversy.) The most hilarious errors came from garbage records. For example, certain Onix records describing Gulliver's Travels carried an author description of the wrong Jonathan Swift. Most of these errors come from garbage records, and when one of these is found, almost always, the same problems can be found in other metadata sources. Google would like to find a way to get corrected records back into the library data ecosystem so that they don't have to fix them again, but that there have been issues with data licensing agreements that still need to be worked out. Article like Nunberg's have been quite helpful to the Google team. Every indication is that Google is in the metadata slog for the long term.

One questioner asked the panel what the library community should be doing to prevent "metadata trainwrecks" from happening in the future. Groetsch said without hesitation "Move away from MARC". There was nodding and murmuring in the audience (the librarian equivalent of an uproar). He elaborated that the worst parts of MARC records were the free text data, and normalization of data would be beneficial whereever possible.

One of the Google engineers working on record parsing, Leonid Taycher, added that the first thing he had had to learn about MARC records was that the "Machine Readable" part of the MARC acronym was a lie. (MARC stands for MAchine Readable Cataloging) The audience was amused.

The last question from the audience was about the future role of libraries in production of metadata. Given the resources being brought to bear on the book metadata by OCLC, Google and others, should libraries be doing cataloguing at all? Karen Coyle's answer was that libraries should concentrate their attention on the rare and unique material in their collections- without their work, these materials would continue to be almost completely invisible.

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Do Libraries Have a Role in the Coming e-Book Economy?

You've probably heard it said that in Chinese, the word for "crisis" is composed from the words for "danger" and "opportunity". In the same presentation, you probably heard that there's no "I" in "TEAM". If you were skeptical of these attempts to extract wisdom from way language is written, you had good reason. The story about the Chinese word for crisis is not true. And even if it was true, it would be about as meaningful as the fact that the English word "SLAUGHTER" contains the word "LAUGHTER".

During my brief time working in "middle management", I was required to do "SWOT Analysis". SWOT stands for "Strengths, Weaknesses, Opportunities, Threats". As a planning exercise, it was quite useful, but it became comical when used as a management tool. Everyone understood the fake Chinese crisis wisdom, and we all made sure that our threats were the same as our opportunities, and our weaknesses were also our strengths.

On this last day of the "0"s, I've been reading a lot of prognostication about the next ten years. It's very relevant to this blog, as I've been using it to help me think about what to do next. Some things are not too hard to imagine: the current newspaper industry will shrink to maybe 10% its current size; the book publishing will reshuffle during the transition to e-books; Google will become middle-aged. The SWOT analysis for these will be easy.

The SWOT analysis that I have trouble with is the one for libraries. What threats to libraries will arise? Will Libraries as we know them even exist in 10 years?

I've heard publishers say they believe that there will be no role at all for libraries in the developing e-book ecosystem. If that's not a threat, I don't know what is! On the other hand, there's the example of the Barnes and Noble e-book reader, the Nook, that has the intriguing feature of being able to read books without buying them while you're in the bookstore! If there's a role for brick and mortar bookstores in the e-book ecosystem, then surely there's a role for libraries.

In thinking about what roles libraries will play when all books are e-books, I keep coming back to a conclusion that sounds odd at first: the prospective role of libraries will be entwined with that of piracy in the e-book ecosystem.

While there are fundamental differences between e-book libraries and e-book pirates, there are important similarities. As I noted in my article on copyright enforcement for e-books, libraries have traditionally played an important role in providing free access to print books; e-book pirates have as their mission the provision of free access to e-books. For this reason, libraries and pirates would occupy the same "market space" in an e-book ecosystem. This is not to say that libraries and pirates would be direct competitors; it's hard to imagine pirate sites appealing to many of the people who patronize libraries.

So where is the "threat" to libraries? Think about how book publishers will need to respond to the threat of e-book piracy. I've argued that publishers should do everything they can to reward e-book purchases, but that addresses only the high price segment of the market. Public libraries address the low-price segment of the market, providing books to people with a low willingness or ability to pay for access, while still providing a revenue stream for the publishers. To keep pirates from capturing this market in the e-book economy, publishers will need to facilitate the creation of services targeted at this market.

An analogy from the video business is appropriate here. DVDs can only satisfy part of the digital video market. Though it's taken a while for the studios to realize it, in order to effectively compete with video pirates, the movie studios need to have digital offerings like hulu.com that offer movies for free.

What will the free e-book services look like? Perhaps they'll be advertising sponsored services like Google Books. Perhaps they'll be publisher- or genre-specific subscription services that provide people a "free book" experience at a fixed monthly price. Unfortunately, it seems a bit unnatural that publishers would turn to libraries to create the sort of services that could replicate the role of the library in the e-book ecosystem- libraries just aren't entrepreneurial in that way.

Somehow I don't think that book publishers will warm to a "Napster for e-Books", even if it was labeled "e-Book Inter-Library Loan".

Still, I'm optimistic. Some horrific mashup of Open Library, Google Books, LibraryThing, WorldCat, BookShare, Facebook, Freebase, RapidShare and the Mechanical Turk is going to just the thing to save both libraries and publishers. You heard it here first. And if you find it scary- don't forget that you can't spell e-Book without BOO!

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In Which Judge Denny Chin Becomes an Orphan Works Hero

Image via Wikipedia

In all the commentary I've read about the Google Book Search Settlement, I don't think I've seen a single article that tries to examine the issues from the point of view of the Judge who has to either approve or reject the agreement. Since the news that Judge Denny Chin is up for promotion to the Court of Appeals broke last week (and who know, in a few years, maybe to the Supreme Court) I've tried to imagine what Judge Chin's perspective might be on the Google case, especially in the context of a possible confirmation hearing. However, since I'm not a lawyer, my imaginings have focused on political angles rather than the law. Certainly, if he could come up with a way to solve the orphan works problem in the Google Books case without messing with the copyright law morass, he would emerge a hero.

To review briefly, orphan works are those that are still under copyright, but whose rightsholders cannot be found. As a result, their works cannot, under the law, be copied for most purposes, because no rightsholder can be found to authorize the use. As part of its Book Search Service, Google digitized millions of books in libraries, and were subsequently sued for copyright infringement by the the Authors Guild and the American Association of Publishers. In the proposed agreement to settle the lawsuit, Google agrees to pay rightsholders a sum of money for the release of copyright infringement claims, and also authorizes Google to make use of the digitzed books in new services and share revenue with rightsholders. Since the rightsholders to orphan works can't be found, the money they would be owed will be held for a period of time in case the rightsholders appear, after which it would be distributed to charities or to other rightsholders, depending on the source.

The treatment of orphan works in the settlement agreement has led to considerable controversy. As I discussed in a previous post, critics have pointed out that the settlement agreement would give Google an exclusive right to use orphan works in ways that would normally require the approval of a rightsholder. This sort of arrangement could result in antitrust issues, international treaty issues, and also seems to change copyright law in ways the have led the Register of Copyrights to express concern that it is impinging on an issue that should properly be the domain of Congress.

This last concern should have been be the most worrisome to Judge Chin. The Congress has to approve appointments to the federal bench, and the recent preferences of both parties have been for judges who "interpret the law" rather than "legislate from the bench". A ruling on copyright from Judge Chin that was interpreted as creating new law could doom Judge Chin's chances of being confirmed. Rulings grounded in Antitrust Law or in International Treaties could be politically controversial no matter which way they went- Americans don't like to be told what they can or can't do based on international treaties or doctrines that baffle them. Rulings based in copyright law are no safer. Try to tell a typical American that Google can't let them read a book because some 120-year-old rightsholder inconsiderately died 50 years ago without giving Google permission, and they'll look at you as if you were a lunatic. For these reasons I imagine that Judge Chin might look for a clear and uncontroversial way to avoid ruling on issues that doesn't he doesn't have to rule on.

To make his situation worse, the Department of Justice submitted its "statement of interest" last night. (For a play-by-play, read Danny Sullivan's summary, then read the expert color commentary by James Grimmelmann) The DOJ's brief displays all of the annoying competence and adroit politics that we've come to expect from the Obama administration. Grimmelmann calls it "a really, really good brief," and while I agree with that assessment, I can't imagine that it's much help to Judge Chin, apart from a few very helpful footnotes and citations (according to Grimmelmann). It is a sweeping brief which examines all the core issues in the agreement, not just those, such as antitrust, where the department's position as enforcer of the law gives it a clear role in the case. On every issue it addresses, it makes excellent sense, but when you step back and look at the filing as a whole, it doesn't do what it says it does. It first praises the benefits that would accrue from the Settlement, then recommends its rejection. It next purports to lay out a course of modifications which would allow the agreement to proceed. But when you look closer at the recommendations, it's hard to chart out a realistic chain of events where they would lead to a judge's approval any time in the near future. It's as if the DOJ had intervened in the Barry Bonds case and said "it's important to our beloved national pasttime and to baseball fans around the world that Barry be allowed to continue his assault on the record books, and we don't want this steroids matter to take away his momentum, but we feel that to comply with the law, the Court should consider stripping away any of Barry's muscles that might might have been chemically enhanced."

As an example, the DOJ has suggested that several classes of rightsholders have not been adequately represented in the settlement, and points to orphan rightsholders and foreign rightsholders as examples. Now imagine inserting two more legal teams into the negotiations. That authors and publishers were able to join in a single agreement strikes me as being a minor miracle; it goes against my scientific training to expect additional miracles. At the very least, we can expect the additional legal fees to eat up more of any settlement.

The DOJ wants Judge Chin to do a lot of searching. It says the "Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law". It also thinks the "Court should engage in a careful and searching examination of the Proposed Settlement and any revised version that may be submitted." And of course, "it believes the Court should undertake a searching inquiry to ensure both that a sufficient number of class members will be reached and that the notice provided gives a complete picture of the broad scope of the Proposed Settlement." If I were Judge Chin, I would be a bit put off by the suggestion that I need some other branch of government to tell me that I need to do a good job of analyzing the case; since I'm not Judge Chin, I just wonder how he would do all this searching without access to Google.

The objections to the agreement filed by several State Attorneys General take a rather different approach. (Here's the pdf of the Objection from Connecticut) Instead of filing sweeping briefs, they address specific concerns germane to the states. They lay out a suprisingly simple argument:

1. Orphan rights are abandoned property.
   
2. State laws, not Federal laws, govern abandoned property, often giving the state custody/ownership.
   
3. States have sovereign immunity and cannot be subject to a federal court's order.

Thus orphan rights cannot be governed by the settlement agreement approved by a federal court.

What I think Judge Chin might be able to do is rule that the states are the only ones with the right to manage the rights to orphan works. (I am not a lawyer, so take this with a grain of salt.) After all, the 10th Amendment of the US Constitution states

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The right to grant Copyrights is one of the powers given to the federal government, but inheritance of those rights is governed by state laws. While this sort of ruling would probably be a rejection of the settlement agreement, it would instruct Google and the States that they could go ahead and negotiate agreements for the use of orphan works. The States could set up an "Orphan Works Registry" and empower it to make deals with companies other than Google.

This sort of ruling would only lead to a solution to the orphan works problem if the states more eager to address the problem than Congress has been. Realistically, in 2009, Congress is fully occupied with 2 wars, a global financial crisis and figuring out how to solve health care. The states, on the other hand, are mostly trying to figure out how to close huge budget gaps; I imagine that most State Attorneys General (and state legislatures, where applicable) would love to be able to deliver both the money and the benefits that would accrue from a non-exclusive deal with Google. Another advantage of a state-run rights registry is that it might avoid some of the liability for errors that a privately run registry would have. Or this might be just an ill-informed fantasy of mine.

If Judge Chin follows DOJ's course, the big question is whether Google would be willing to continue pursuit of an agreement. Will Google think it could live with the costs and risks of the opt-in mechanisms supported by DOJ? Maybe I'll try to address that question in a future post.

Related articles

• Court urged to reject Google book deal (cnn.com)
• Feds Balk At Google Book Deal (huffingtonpost.com)
• Government Urges Changes to Google Books Deal (nytimes.com)
• DOJ: Google's book settlement needs rewrite (news.cnet.com)
• States wade into Google book deal row (theregister.co.uk)

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Riportare alla luce i libri dimenticati in tutto il mondo

Daniel Clancy, Engineering Director di Google Books, ha appena pubblicato un interessante post sul nostro European Policy Blog in cui racconta lo spirito con cui parteciperà all'udienza di oggi alla Commissione Europa per discutere di Google Books.

Lo linkiamo qui visto che delle iniziative di digitalizzazione del patrimonio librario abbiamo più volte parlato anche su questo blog, suscitando i commenti e l'attenzione di molti dei nostri lettori.

Scritto da: Simona Panseri, Corporate Communications & Public Affairs Manager
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What the Google Books Settlement Agreement Says About Privacy

Here's what Google thinks I'm interested in:

• Computers & Electronics - Enterprise Technology - Data Management
• Computers & Electronics - Software - ... - Content Management
• Entertainment - Movies
• Finance & Insurance - Investing
• Internet - Web Services
• Lifestyles - Clubs & Organizations
• Lifestyles - Parenting & Family
• News & Current Events - Technology News
• Reference - Libraries & Museums
• Social Networks & Online Communities - Social Networks

If you want to find out what Google thinks you're interested in, go to http://www.google.com/ads/preferences/view and find out. Does anything there disturb you? Can you imagine items that might appear on your list that would disturb you, or that you wouldn't want to post on your Facebook profile or in a comment to this post?

Last Friday I participated in a workshop sponsored by Harvard's Berkman Center focusing on Google Books and Google's settlement agreement with authors and publishers. The meeting was very well tweeted, so I won't bother to summarize or comment on the blog, at least for now. In the afternoon, I participated in a breakout session on privacy issues facilitated by Marc Rotenberg from EPIC. Recently, the Electronic Frontier Foundation (EFF) has focused attention on the neglect of patron privacy in the settlement agreement. At the NYPL panel I attended, the view expressed by the participants was that though privacy was a very important issue, the settlement agreement was not the place to address privacy concerns. At the Harvard workshop, the opposite view was predominant.

In the EFF posting, I was struck by by the fact that they suggest that Google should be required to

allow users of anonymity providers, such as Tor, proxy servers, and anonymous VPN providers, to access Google Book Search

but they don't seem to expect libraries to be participating in the digital environment for books. In fact, I doubt that many libraries today view themselves as potential anonymity providers, despite the deep-seated respect for patron privacy that is part of the inherited culture of librarianship. I had wondered whether libraries would be able to use technological means, such as proxy servers, to ensure the privacy of their patrons who use Google Book Search. With some inspiration from the workshop, I've spent some time closely examining the agreement to see what it really says about privacy and what libraries might be able to do to enhance patron privacy.

Nowadays, electronic resources librarians can't help but focus more concern on monitoring for misuse of resources than on patron privacy issues. The obligation to do so is built into most license agreements for electronic resources. The following passage is from section 5.2 of the CLIR/DLF Model License:

Protection from Unauthorized Use. Licensee shall use reasonable efforts to inform Authorized Users of the restrictions on use of the Licensed Materials. In the event of any Authorized User makes an unauthorized use of the Licensed Materials, the parties may take the following actions as a cure:

1. Licensor may terminate such Authorized User's access to the Licensed Materials;
2. Licensor may terminate the access of the Internet Protocol (“IP”) address(es) from which such unauthorized use occurred; or
3. Licensee may terminate such Authorized User’s access to the Licensed Materials upon Licensor’s request. Licensor shall take none of the steps described in this paragraph without first providing reasonable notice to Licensee (in no event less than [time period]) and cooperating with the Licensee to avoid recurrence of any unauthorized use.

Frequently libraries have to negotiate to get this language, as publisher licenses frequently have more burdensome requirements.

The sorts of things that actually happen, and librarians worry about, are of two types. The first is when a student with legitimate credentials "loans" them to a friend and in a week or two thousands of "friends" (often in another country) are using a resource through the campus proxy server. The librarians obligation is to identify and disable the rogue credentials. In the other scenario, a student or faculty member tries to use some type of downloading tool to download an entire journal or database for some sort of offline use. In this case as well, the offending user must be identified and told "don't do that". Publishers of electronic resources typically have monitoring tools (and bot traps and poison pills) in place so that they can detect such misuse and shut off a customer's access when this sort of thing occurs. A call to a support desk is typically needed to restore access. Publishers realize that these things happen, and that on a campus with 20,000 students, there are limits to how much librarians can control what their patrons do. I do not know of any case where legal proceedings or demands or compensation have resulted from such incidents, but I do know that one publisher cut off access to all of China for several months when a breach occurred there.

There clearly exists tension between a library's obligations to prevent unauthorized use and its obligations to protect the privacy of users. In the CLIR/DLF model license, there is a mutual obligation that balances the licensee obligation to control unauthorized use:

Confidentiality of User Data. Licensor and Licensee agree to maintain the confidentiality of any data relating to the usage of the Licensed Materials by Licensee and its Authorized Users. Such data may be used solely for purposes directly related to the Licensed Materials and may only be provided to third parties in aggregate form. Raw usage data, including but not limited to information relating to the identity of specific users and/or uses, shall not be provided to any third party.

The balance between providing for security against unauthorized use and confidentiality of user data is the practical determinant of the degree to which a patron can expect to have real privacy. To provide security against unauthorized of electronic resources, a library needs to generate logs for any proxy servers that it operates. To assure patron privacy, a library must be diligent to limit the retention of those log files and of any other records that might be used to identify and track users and their usage of particular resources.

The settlement agreement (available here) says very little about patron privacy. (In fact, the only users whose privacy is mandated are users with print disabilities who access Library Digital Copies in Fully Participating Libraries under the special access provisions of section 7.2(b)(i) of the agreement.) (I'm capitalizing terms defined in the agreement.) It says quite a lot about security, however, and thus many aspects of patron privacy will be effectively governed by the provisions for security. The use of proxy servers by libraries is implicitly mentioned in two places. In section 4.1(a)(iv) pricing bands are specified for government, public and school library subscriptions with the qualifier "no remote access without Registry approval", while higher education and corporate pricing bands are specified without the remote access qualifier. Remote access is most typically provided by libraries in higher education through the use of proxy servers. Additionally, the "Security Standard" set out in Appendix D to the agreement specifies that

Google shall use commercially reasonable efforts to authenticate individual End Users for access to Books in an Institutional Subscription by verifying that an individual is affiliated with an institution with an active subscription. Google’s efforts will be in partnership with the subscribing institutions in a manner consistent with, or otherwise equivalent to, generally accepted industry standards for authentication of use of subscriptions. Techniques used may include IP address authentication, user login, and/or leveraging authentication systems already in place at an individual institution.

Since the current "industry standard" is to allow users to authenticate through a proxy server against an institutional id/password service, it would seem that proxy servers would be permitted under the agreement, at least for higher education settings.

There is a specific security requirement set by the agreement that is likely to result in increased user tracking by Google. Google is required to make sure that each user cannot preview more than a certain number of pages of a book. Thus, Google must keep track of the books that a user has viewed, and stop the preview once the quota is reached. For the purposes of this requirement, Google is supposed to treat multiple users of a given computer as a single user. Assuming it is possible do so, this would have some odd consequences for computers in a library. A patron would be able to move from computer to computer and view more than their quota, but might not be able to view any pages from a book popular enough to have been previously viewed by another patron. In the current version of Google Book Search, cookies, not IP addresses, are used to track users, but a user is not required to log into the service at all unless they want to access personalization features. Google sets a 2-year cookie when you use the service, but the service can be used without cookies. To fulfill the terms of the settlement agreement, it appears to me that it's likely that Google would have to either require users to log into personally identifiable accounts, or to use IP addresses of individual computers to allow unidentified users access the service. Either way, libraries would be limited in their ability to use proxy servers to protect patron privacy (for example, by blocking cookies), and it's quite clear that what EFF has proposed with respect to anonymity providers is incompatible with the agreement.

I do not know of any resources currently licensed to libraries that are comparable to the post-settlement Google Book Search in the requirements for user tracking to prevent excessive uses, so it's not clear to me how much guidance is really given by the phrase "generally accepted industry standards for authentication of use of subscriptions". Authentication methods less widely deployed, such as Shibboleth may provide more patron privacy than use of cookies and IP addresses and/or proxy servers, while at the same time allowing Google to satisfy the terms of the settlement agreement. It is also likely that authentication technology, or modifications of existing authentication technologies, could be developed and specifically tailored to meet both the security requirements of licensors and the privacy requirements of libraries.

It is worth noting that the requirement for user tracking is not found in main part of the settlement agreement, but rather in "Attachment D", the Security Standard. Interestingly, the settlement agreement includes a provision for the Security Standard to be reviewed and revised every two years, by "Google, the Registry and up to a total of four (4) representatives on behalf of the Fully Participating Libraries" to allow for changes in Technology. Note that although the libraries are included because of their role in allowing use of library digital copies, there is a single Security Standard which applies to both Google and library-provided services. Thus there will be four library representatives who must agree to revisions in the security policy (and thus on the privacy that it allows) to be implemented in Google services. In theory at least, libraries could use the review of the Security Standard to introduce use of security/privacy technologies suited to the special characteristics of Google Book Search Subscriptions.

It is unclear what security requirements apply to the "Public Access Service" which would put free terminals (with paid printing available) in any US library that wanted it, because the settlement agreement treats the Public Access Service as something separate from the Institutional Subscription, while the Security Standard makes no mention at all of the Public Access Service. It seems possible that adding coverage of the Public Access Service to the Security Standard would also have to be addressed by the security review group that includes the library representatives.

In any case, it is clear that the power of the Book Rights Registry to review and approve the security implementation plans of Google gives it a great deal of leeway to set standards for patron privacy. Since the primary duty of the Registry is to serve rights-holders, its intrinsic motivation for protecting privacy would be only to see that privacy intrusions do not act to depress revenue significantly. Strong oversight by the court such as has been requested by the library associations may also promote attention to privacy concerns. Finally, it is likely that the Registry will need to pay close attention to state patron privacy laws. The library-registry agreements explicitly allow for state laws to trump any library obligations under the settlement agreement, so there can be no provision of the security standard that is incompatible with state privacy laws.

Google, as presently constituted, has every reason to be concerned about user privacy and guard it vigilantly; its business would be severely compromised by any perception that it intrudes on the privacy of its users. As Larry Lessig pointed out at the Berkman workshop, that doesn't mean that the Google of the future will behave similarly. Privacy concerns should be addressed; the main question has been how and where to address them. My reading of the settlement agreement is that it may be possible to address these concerns through the agreement's Security Standard review mechanism, through oversight of the Registry, and through state and federal laws governing library patron privacy.

And I am still not a lawyer.

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