Braille Monitor                                                    November 2009

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The Democratization of Knowledge
NFB Works to Promote the Google Book Settlement

by Daniel B. Frye

Dan FryeDuring the 2009 NFB national convention, Federationists enthusiastically greeted the news that the Google Book settlement (the product of almost four years of legal maneuvering between Google and the Authors Guild and the Association of American Publishers over Google's proposed book digitalization project with several American universities) was almost final. Blind consumers were euphoric at the prospect of being able to access millions of titles digitally that had not been available previously. This historic breakthrough in information access promised to revolutionize the methods that blind people would use to read the printed word.

As the time for court approval of the settlement grew near, however, some Google competitors, legal academics, and the U.S. Department of Justice began raising objections to the terms of this class-action settlement. These detractors said that the settlement as drafted would among other things violate antitrust, copyright, and legal requirements for adequately identifying and treating different classes potentially affected by this landmark agreement. Presumably in response to the increased opposition to this agreement from representatives of industry, academia, and government, the Authors Guild and the American Association of Publishers filed a motion with the federal court to delay approval of the settlement while efforts to renegotiate terms of the agreement substantially were undertaken. Judge Denny Chin of the United States District Court for the Southern District of New York granted plaintiff's motion, which was not opposed by Google, on Thursday, September 24, 2009. When one analyzes the objections to this settlement, it does not appear that the substance of the concerns directly relates to the accessibility provisions in the challenged agreement, but it is equally true that a further delay in approval of a settlement inevitably represents postponement of the implementation of a program that would be immensely beneficial to blind readers.

While we wait to see what emerges from this next round of discussions among the interested parties, Braille Monitor readers will benefit from some background about the accessibility portions of the settlement that was almost approved. Familiarity with these provisions will be useful in measuring success in any future agreement. Further, reviewing our efforts to champion the advantages of digital access to texts in the settlement will help readers understand the exciting possibilities that may be just around the corner.

On the final afternoon of the 2009 national convention, President Maurer introduced Jack Bernard, chairman of the Council for Disability Concerns and assistant general counsel for the University of Michigan, to deliver a program item titled "Negotiating Accessible Electronic Books: A Massive Undertaking, A Smashing Success." Mr. Bernard explained that on behalf of the University of Michigan he had been directly involved in negotiating many of the access provisions of the Google Book settlement as part of the university's effort to enhance its already substantial project to digitalize the books in its library. In his remarks Mr. Bernard detailed the principal accessibility elements of the Google Book settlement. If not modified during this new round of negotiations, the salient accessibility planks in the settlement, as outlined and defined during his remarks, will include the following:

Encouraged by the promise of such a substantial body of material’s being made accessible to blind people through this agreement, in testimony on September 10, 2009, before the House Judiciary Committee, President Maurer urged that the settlement be ratified and finalized. The NFB also submitted a brief to the court promoting the accessibility advantages of this settlement. Because it effectively summarizes the Federation's position on the Google Book settlement, here is President Maurer's testimony:

Statement of the National Federation of the Blind
United States House of Representatives
Committee on the Judiciary
Competition and Commerce in Digital Books
September 10, 2009

Mr. Chairman, my name is Marc Maurer, and I serve as president of the National Federation of the Blind. The National Federation of the Blind is the oldest and largest organization of blind people in the United States. Through our affiliates in each of the fifty states, the District of Columbia, and Puerto Rico and our seven hundred local chapters, we seek to advance the rights of blind people by helping both the blind and the sighted to understand that blindness, in and of itself, need not be a tragedy. The real problem of blindness is not loss of eyesight, but the misunderstandings and misconceptions about it that are prevalent in society. With proper training and opportunity blindness can be reduced to the level of a mere physical nuisance.

The proper training and opportunity part of this equation cannot be overemphasized. Among the keys to opportunity are a good education and access to information. This is particularly true in the twenty-first century, when information is the coin of the realm. In order to succeed, blind people must have full and equal access to all forms of information, including the written word. But historically access to written knowledge has been one of the greatest challenges faced by the blind. For most of human history the vast majority of blind people did not have access to books at all. With the invention of Braille and then of audio recording and playback technology, more books became available to us, but still the selection of titles to which we have access is extremely limited.

The Google settlement, if approved, will change all that. The agreement promises to make millions of titles available to a wide audience, including those who are blind or who cannot read print for other reasons. The terms of the settlement allow Google to provide the material it offers users “in a manner that accommodates users with print disabilities so that such users have a substantially similar user experience as users without print disabilities.” A user with a print disability under the agreement is one who is “unable to read or use standard printed material due to blindness, visual disability, physical limitations, organic dysfunction, or dyslexia.” The settlement, if approved, will therefore bring the printed word to as many as thirty million people who currently have limited access to it. Blind people will be able to search for books through the Google Books interface and purchase, borrow, or read at a public library any of the books that are available to the general public, in a format that is compatible with text-enlargement software, text-to-speech screen-access software, and refreshable Braille devices. If this settlement is approved, blind people will have greater access to books than we have ever had in human history.

Currently the blind have access to a relatively sparse selection of titles produced by government and nonprofit organizations dedicated to serving our needs. The primary source of reading material for most blind Americans is the National Library Service for the Blind and Physically Handicapped of the Library of Congress. While this service has done an outstanding job of providing books to the blind within budgetary constraints, it has, at most, perhaps seventy thousand circulating titles in its collection. Furthermore, even if all methods of providing content in a format accessible to the blind, including commercial audio books, are taken into consideration, it is estimated that only 5 percent of the books published each year are ever produced in a format that can be used by the blind or others with print disabilities.

While the blind have for years been tantalized by the promise of greater access through eBooks, which are inherently accessible, the sad fact is that no other provider of eBooks has yet made its offerings accessible to the blind. Instead publishers distribute their eBooks through inaccessible devices and platforms, use digital-rights-management schemes to prevent screen-access technology and other methods used by the blind from accessing these books, or both. Prior to this landmark settlement agreement, neither authors and publishers nor any entity promoting eBook technology had ever consented to any system that would make such a large number of books immediately accessible to the blind and other Americans with print disabilities. The Google settlement therefore represents the only present prospect for blind people to access electronic texts. It is our hope and belief that the settlement will also represent a paradigm shift that will encourage other publishers and eBook distributors to make accessibility a priority.

Libraries are currently distributing eBooks to borrowers. An increasing number of universities require students to use e-texts. Some state governments are contemplating replacing printed books with e-texts. A number of companies are distributing e-texts. The e-text market is expanding rapidly, and the Google settlement represents the only substantial effort to make this form of information usable by the blind. The technology exists to make all of this distributed information readily accessible to the blind. Unless an immediate effort to implement such a system is pursued, the result for employment for blind people will be devastating. Already the lack of information has meant that fewer than 50 percent of blind people in the school years will graduate from high school. Already the lack of information has contributed to an unemployment rate for the blind in excess of 70 percent. Already the lack of information has prevented blind students from being able to matriculate in college courses of their choosing. Blind people are willing to pay for books, but they must be books we can read. The proposed Google settlement is a promise that this magnificent notion may become real.

It has been said that the proposed Google settlement is an effort to give judicial sanction to theft of intellectual property. This argument ignores the provisions of the settlement itself. Any author wishing to avoid the terms of the settlement may opt out. Those who do not opt out receive a very substantial portion of the revenue generated.

Some opponents of the settlement have propounded the argument that, by including accessible provisions for the blind in the agreement, Google has taken a position akin to that of Robin Hood. Apparently these opponents are saying that Google is taking what doesn’t belong to it and justifying the theft by giving access to the blind. This is an argument without foundation. The blind are prepared to pay for books at the same rate and to the same extent that the sighted must do so. The settlement has no provisions to give intellectual property to the blind that is not already available to the sighted. The blind must pay as much for intellectual property as the sighted. No different terms apply to blind people from those which apply to the sighted. The Robin Hood analogy fails because the blind don’t get anything free that the sighted don’t get free and because a Robin Hood must first steal the material. If the theft hasn’t occurred, the transaction has to be characterized in some other way.

The Google settlement is, for the blind and many others, the next step in the democratization of knowledge. That process began with the introduction of the printing press and then, for the blind, with the invention of Braille. Now technology has arisen which transcends the traditional limitations of both print and Braille, promising to make millions of titles available to the blind in Braille or any other format of our choice. The narrow business interests of Google’s competitors must not be allowed to block Americans who cannot read print from all of the opportunities that greater access to written knowledge will make available to them. It is time for the doors of the world’s great libraries to be opened in welcome to everyone.

Thank you for the opportunity to present this testimony. If you have any further questions, please do not hesitate to contact the National Federation of the Blind.

Significant coverage of the Google Books settlement has been reported in the technology press. Readers interested in a fairly comprehensive explanation of the nonblindness-related rationale of the settlement's detractors can read "DOJ Urges Court to Reject Google Book Settlement," a September 19, 2009, article that appeared in PC Magazine; the article can be found at <,2817,2353052,00.asp>. We print below a shorter piece, published on September 24, 2009, from the BITS Blog of the New York Times. Here it is:

Google Books Settlement Delayed Indefinitely
by Miguel Helft

As currently written, the controversial settlement between Google and groups representing publishers and authors is officially dead. On Thursday, a federal judge gave the parties time to negotiate a new deal that would address some of the many objections filed by various groups.

Judge Denny Chin of the United States District Court for the Southern District of New York granted a motion to delay an October 7 hearing on the settlement, which would pave the way for Google to create an immense digital library and bookstore. The motion was filed earlier this week by the Authors Guild and the Association of American Publishers, the plaintiffs in the case, and was unopposed by Google, the defendant.

Judge Chin said that it made no sense to hold a hearing on the current settlement since the parties have indicated that they are negotiating significant changes to it. In his order Judge Chin indicated that he took seriously the long list of objections that various parties have raised about the agreement. "The current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations, and prominent authors and law professors," Judge Chin wrote. "Clearly, fair concerns have been raised."

But Judge Chin also echoed comments made by the Justice Department last week that the settlement, if properly revised, could offer great benefits, most notably, by providing broad access to millions of out-of-print books that are largely locked up in a small group of university libraries. "The settlement would offer many benefits to society, as recognized by supporters of the settlement as well as DOJ," he wrote, referring to the Department of Justice, which filed its own brief in the case last week. "It would appear that, if a fair and reasonable settlement can be struck, the public would benefit."

The first clear signs that the settlement in its current form would be derailed came late Friday, when the Justice Department raised a number of legal and antitrust objections to it. In its brief the department also said that the parties appeared willing to renegotiate many aspects of the agreement to overcome its opposition. The decision by the plaintiffs to ask for more time represents a stark reversal from earlier this year. In April a group of authors and the heirs of others, including representatives of the estate of John Steinbeck, first asked the court to delay the fairness hearing and deadline for filing objections. The authors asked for a four-month delay, and the parties, eager to have the agreement approved quickly, reluctantly recommended a two-month delay. Judge Chin sided with the authors.

Observers say the delay provided the time necessary for the many critics of the deal, including the Justice Department, to come forward. The court received more than four hundred filings, the majority of them raising issues about various parts of the agreement. Instead of the scheduled fairness hearing, Judge Chin asked the parties to convene in court on October 7 for a status conference. The purpose of the conference is to "determine how to proceed with the case as expeditiously as possible, as this case has now been pending for more than four years," he wrote.

The Authors Guild and the Association of American Publishers sued Google in 2005 for copyright infringement over the company's plan to scan books from major libraries and make them available online. The parties announced the settlement, which took two years to negotiate, in October. The settlement also appears to be facing another challenge in a French court.

There you have a summary of Judge Chin’s decision. We must now wait for further word on the resolution of the Google Book settlement. The Federation will continue to work behind the scenes to influence the outcome of the new negotiations, making sure that access to the printed word through Google's digital library remains a top priority.

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