Digital Media Buzz > Out-of-Print Comes Back in Style With Google and B&N

Out-of-Print Comes Back in Style With Google and B&N

By Lee Simmons

Search giant Google and book publisher Barnes & Noble are dusting off the volumes of out-of-print books and bringing them back — except their motivations are vastly different.

Google’s plan to make available millions of out-of-print books online is stirring one of the publishing world’s biggest controversies in recent years. In an industry that until recently focused its attentions squarely on new releases, Google’s Book Search feature has publishers and authors abuzz over its implications.

Its potential impacts, however, depends on who you ask.

A few years ago, Google partnered with several leading libraries to scan the text of millions of out-of-print books into its database. Some publishers and authors objected, saying the scanning project was a violation of copyright laws. When Google continued unabated, the Authors Guild, the Association of American Publishers (AAP) and a collection of authors and publishers decided to take the issue to court.

Google and the plaintiffs spent a few years lobbing the issue back and forth. A recently proposed settlement reached between the two stipulates that Google would make available these scanned out-of-print books through its Google Book Search feature by enabling authors to opt-out as they choose. Consumers using the search function are already able to read selected parts of 7 million books; if approved, the settlement allows consumers to purchase the full text of those books, with Google and authors splitting the revenue (70 percent to authors, 30 percent to Google).

That plan has generated everything from cheers to jeers in the publishing community. Some say the deal pushes the envelope on anti-trust violations by effectively quashing other online competitors. Others believe the settlement would actually promote competition by bringing out-of-print books back to the fore and enabling authors — some of whom never made a cent on their books when they were previously in circulation — to finally see some financial returns.

Allan Adler, vice president for legal and government affairs for AAP, says the settlement goes beyond its goals of creating an equitable revenue stream for all parties. The key change, Adler says, was to clarify exactly how authors would engage in the project.

“The settlement agreement, from the perspective of the plaintiff authors and publishers, vindicates their view that the exploitation of rights of copyright is an ‘opt-in’ proposition,” Adler says. “Anyone who wants to use a copyrighted work in a manner that implicates the rights of the copyright owner, without the ability to claim an exemption or limitation on those rights under the law, must seek permission from the copyright owner before engaging in that use.”

However, when it comes to out-of-print books, the plaintiffs agreed that Google could make certain uses— namely, scanning specific sections — of a book until a rights holder comes forward and asks Google to stop. This ‘opt-out’ model, Adler adds, gives authors the power to remove their works from Google Book Search, as well as a financial incentive to include their works in the project.

“Since the out-of-print works, by definition, are not now being exploited in the market by their rights holders — presumably because the costs of such exploitation exceed the revenue likely to be obtained— incentives to get the rights holders to claim their works had to be provided by the settlement in order to allow those works to become part of the access revenue models that the settlement would authorize,” Adler explains. “In addition to the prospect of possibly making money from books that have made no money for their rights holders in a very long time (maybe even never), making Google’s use of those works subject to an ‘opt-out’ rather than an ‘opt-in’ by the rights holder provides incentives for the rights holders to come forward to claim their books.”

Whether the proposed settlement might violate anti-trust laws is another question. The Department of Justice recently opened an inquiry into the matter, and already a bevy of major retailers, including Amazon, have filed complaints against Google. On the other hand, the prospect of reviving out-of-print books has some retailers jumping on the bandwagon. Barnes & Noble recently launched its own Rediscovers series, aimed at selling out-of-print books through its retail stores and online. The series, which presently boasts 33 titles, will eventually extend to e-book and print-on-demand options.

“We are always looking at publishing books that benefit our customers and have done so throughout the history of the company,” says Marcus Leaver, president of Sterling Publishing, Barnes & Noble’s publishing subsidiary.

While Barnes & Noble is a member of Google’s Partner Program (through which publishers and authors can submit works to be included in Book Search), Leaver doesn’t see Google Book Search as a direct competitor to the Rediscovers series, insisting instead that the series was borne out of customer demand. “Our customers are people who want to be directed to a well-curated program of publishing that they might not otherwise discover,” he says. “As a retailer and publisher we are continually working to put books in our customers’ hands — either those they have requested or through curated programs such as Barnes & Noble Rediscovers.”

AAP’s Adler, however, believes Barnes & Noble’s recent efforts support the idea that the Google settlement actually fosters competition. That, he says, will be a central issue when Google defends its case to the Justice Department.  “It is our hope that the Justice Department is convinced that nothing is wrong with the settlement. There is absolutely no reason that anti-competitive issues would arrive as a result of this, and an example like Barnes & Noble’s work is one of the reasons why the JD shouldn’t be concerned,” Adler says. “The market for digital books is quite vibrant.”