Faced with a fundamental disagreement over copyright law, with major implications for the future of the web, the parties in two three-year-old lawsuits over Google's controversial library scan plan opted for an “audacious” (according to one plaintiff), if expected, settlement strategy: they agreed to disagree on the core copyright argument of the case and instead focused on business.

The resulting settlement, announced on October 28, may be the most sweeping content licensing deal in the history of the web—and presents both challenges and opportunities for libraries.

Paraphrasing University of Michigan (UM) librarian Paul Courant, a staunch Google ally, the deal essentially evolves Google Book Search from a universal digital library into a universal digital bookstore. Google will pay some $125 million to settle the suits, of which $45 million will be used to resolve claims for those whose books have been digitized (estimated at about $60 per book to authors).

The rest will go to the costs of implementing a new business plan—the centerpiece of which is Google's selling “institutional subscriptions” to the full contents of its database, splitting revenues with authors and publishers. Under the deal, every public library is entitled to a single “designated” terminal in the library for free access to the database. Some $35 million is set aside for creating a “Book Rights Registry” to facilitate transactions.

Individual users accessing books on Google Book Search will eventually be able to preview significant chunks of in-copyright books online, or pay to see an entire in-copyright book. They could also buy a copy or print the book in whole or in part on a home printer. The “snippet”—the short glimpses of in-copyright books initially offered by Google—will be largely replaced by a “preview” function that will comprise up to 20 percent of the book, including entire pages.

While the parties used words like “stupendous” and “groundbreaking” to describe the deal, librarians' immediate reaction was somewhat muted. “It has taken two years to get this agreement; we need a few more days,” said Association of Research Libraries' associate executive director Prue Adler. Speaking from the annual Open Content Alliance (OCA) annual business meeting, Internet Archive founder Brewster Kahle struck a more ominous tone: “It appears to be everything we expected, and feared.”

While the deal portends increased access to books, especially those still under copyright but long since out-of-print, the as-yet-unknown details of the plan will be crucial, librarians agreed. For example, there is no firm price structure for institutional access. Further, it is unclear if access to the subscription database will be enabled remotely and for whom.

Looking to the future, will libraries, consistently pressed for space and money, eventually choose to discard their collections of out-of-print and rarely used books, instead outsourcing access to Google? One attorney, on background, echoed librarians' longstanding concerns about restrictions placed on Google's licensed scans, noting that should libraries come to rely on Google for access, the rule of law, such as fair use, could effectively be supplanted by contract law.

Librarians at UM, Stanford, and the University of California, who said they gave input on the deal, acknowledged there were thorny questions for libraries but said the deal was positive. “Many, including me, would have been delighted if the outcome of the lawsuit had been a ringing affirmation of the fair use rights,” Courant wrote in his blog. “But even a win for Google would have left the libraries unable to have full use of their digitized collections of in-copyright materials on behalf of their own campuses or the broader public.... I'm confident that we would have gotten there in time, serving the interests of all parties. But 'in time' would surely have been many years.”

At press time it was unclear how quickly the deal would be implemented. It still must be approved by a federal judge, and its complex terms will certainly take time to put into action. For the public—and for libraries involved with their own digitization efforts—the settlement may be disappointing, as it failed to touch on the case's core copyright issues. For all the talk of moral outrage from the Association of American Publishers (whose members were plaintiffs) and of fair use from Google, in the end, critics note, the deal came down to money—and Google surely has deep pockets.

“We had a major disagreement with Google, and we still do,” said Paul Aiken, executive director of the Authors Guild, a plaintiff, who said two “guideposts” helped lead his organization through a thicket of issues in the suit. “Authors like their books to be read,” he noted, “and they like a nice royalty check.”