1. Jonathan Band Jonathan Band PLLC jband@policybandwidth.com Library Association Concerns with the Google Book Settlement

2. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Library Association Comments On the one hand… Google can continue scanning books into its search index. For most books (in-copyright, out-of-print), users can see up to 20% of a book for free, rather than just three snippets. Users can get free access to full text through public access service terminals. Consumers can purchase access to out-of-print books for relatively low cost. Institutions can purchase access to full text of millions of books. Scholars can perform non-consumptive research on Research Corpus. Participating libraries receive digital copies of their collections. 2

3. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Library Association Comments On the other hand… There will be no competition for this “essential facility.” Publishers, other search engines will not be able to compete: enormous lead, market share, copyright barrier to entry. Pricing of institutional subscriptions could be too high. Undermine library values of equity of access, privacy, and intellectual freedom. 3

4. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Library Association Comments Google and the BRR will set the price of the institutional subscription. Objectives in pricing: realization of revenue at market rates; realization of broad access to books. Parameters for pricing include pricing of “similar products and services.” Pricing will be based on full-time equivalent (FTE) users. Pricing can vary based on category: corporate; higher-ed; K-12; government; public library (only higher-ed can have remote access). 4

5. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Library Association Comments If Google and BRR can’t agree on pricing, arbitrator will decide. BRR might seek to emulate online journal subscription model of high price, limited access. Average research library spends $4.3 million annually for access to 30,000 journal titles; what if arbitrator decides that this is a “comparable product”? See ARL Statistics 2006-2007 50-51 (2008). Pricing review in Michigan agreement: available only to Google partners, who might not have financial incentive; refund limited to Google’s share (37% of price). 5

6. www.policybandwidth.com Jonathan Band PLLC Technology Law and Policy Library Association Comments Solution? Not asking for court to reject settlement Instead, asking court to closely supervise interpretation and implementation of settlement Libraries must have ability to challenge pricing of institutional subscriptions. Diversity of representation on BRR. Users must be able to learn privacy policies, list of excluded books. Companies must be able to challenge BRR’s refusal to license. 6