Intellectual Property Law

As the Google Book Deal approaches its next phase, I am wondering does anything ever go out of print? Pam Samuelson and others have noted the vague nature of the deal. I have poked at some drafting issues at the Public Index. The out of print problem seems like a key issue about why this deal should not proceed. (I am assuming that the out of print terms will not change much or at all). How books are treated from display to revenue is controlled heavily by the print status. Indeed, the deal is premised on the idea that so many out of print books will be available. Yet, if one reads this rather complicated entertainment industry-styled deal, one may find that out of print is a moving target. If I am correct, that is not a good thing.

Let’s look at the deal. Old Section 3.2 covers what display status is allowed for a book and requires a determination of whether a book is commercially available. Who determines that status? Google (3.2(d)(i)). Google will conduct:

an analysis of multiple third-party databases as well as an analysis of the Book’s retail availability based on information that is publicly available on the Internet. When analyzing the third-party databases, Google will use the publishing status, product availability and/or availability codes to determine whether or not the particular database being used considers that Book to be offered for sale new through one or more then-customary channels of trade in the United States

Of course as the market shifts and on-demand or digital publishing grows (and yes we ought to consider that those two models could easily be the norm for the near future) all books will be publicly available. If so, the determination seems to be useless. But, even a deferential reading that some books will be out of print has problems. Consider that the default is that if Google can’t find proper information as defined in the deal about a book (can anyone say orphan works analog with me?) the default is that the book is not commercially available. (“All Books for which Google does not have information from the sources identified above will be determined to be not Commercially Available.”)

Furthermore, the rightsholders can assert that a book is commercially available and then Google must honor that claim unless it ; “reasonably believes that the information is inaccurate.” That standard is an invitation to either fight or fight only when the stakes are right. They won’t be right unless a huge number of claims are asserted and Google wants to pick up the problem of an aggressive publisher industry. Again with on-demand and digital publishing the publishers could in good faith claim that a book is commercially available.

Let’s go further into the process where we shall see that some rather odd ideas about reversion and out of print are in control and a possible, but not certain, safety valve about how the determinations are made. The deal states “Google’s initial determination of whether or not a Book is Commercially Available will be used to initially classify Books as “In-Print” or “Out-Of-Print,” as such classifications are defined in the Author-Publisher Procedures, and only for purposes of the Settlement.”

So Google makes the determination, but there are limits. In fact, if one goes to the Author-Publisher Procedures, one finds a command (“shall” indicates no discretion to me):

Read More »Is Anything Ever Out of Print? Or Google and The Monkey’s Paw