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Judge Rejects Google Books Settlement

A judge has rejected a proposed settlement between Google and a coalition of authors and publishers related to Google’s unauthorized scanning of copyrighted books (see “Authors and Publishers Settle with Google Book Search,” 29 October 2008). The rejection may lead to a narrower deal in which all creative parties’ rights are protected.

Why should you care about this? Because had the settlement been approved, it would have given Google a unique position in which it was immune to lawsuits by authors and publishers while simultaneously being granted control over an enormous set of books. No other firm, whether Amazon, Apple, Microsoft, or a company not yet in existence, could obtain the same terms.

The agreement would also have granted Google the right to scan and sell works that were protected by copyright but for which the owner of the rights couldn’t easily be found. And it set up a consortium — really a cartel — of rights owners who would set non-negotiable prices for works in electronic form.

All of this would have put Google in charge of ebooks forever. It would have limited access, kept prices high, and locked out publishers and authors who didn’t want to be part of this system.

Google would have given extremely limited free access to libraries and universities, with one “terminal” per branch or per few thousand enrolled students. The free availability to libraries and universities was hailed as a flowering of access to human knowledge — but the usage limits were rarely cited.

I wrote extensively about this in “Google Books Settlement Hits Snags” (7 September 2009), noting three main objections raised by parties including the Registrar of Copyrights and foreign publishers. Two of the three points were cited in the summary of the settlement rejection by the judge. Were the agreement approved to settle the suits, Judge Denny Chin wrote,

“ would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA [Amended Settlement Agreement] would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.”

The third major point, about this agreement affecting foreign publishers’ works without their involvement in the settlement, was also mentioned by Chin in the full decision.

Chin left the door open to a much narrower way to resolve the lawsuits. He wrote,

“...many of the concerns raised in the objections would be ameliorated if the ASA were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement.”

(You can read a detailed and approachable summary of the decision at The Laboratorium, run by a New York Law School professor, and find a link to the PDF of the decision. Some of his and his students’ work was cited by the judge.)

The opt-in approach is not nearly as positive for Google, because it doesn’t give the company access to millions of works where an author or publisher can’t be found to give permission. The Library of Congress and Registrar of Copyrights had floated a proposal to solve the issue of so-called orphaned works, creating a process that outfits like Google could follow to use works legitimately if an owner could not be found. In a bit of irony, that proposal stalled in Congress because the Google Books lawsuit was underway. Now it may be able to advance.

There is no good argument against the notion that there is a vast public benefit in making millions of titles available in searchable electronic form. As the only organization willing to step up to the plate and try to do that, Google should be applauded. However, the settlement undercut that public benefit both by giving Google a privileged gatekeeper position that would eliminate all competition in the field and by creating a price-setting cartel of authors and publishers.

So in the end, Judge Chin’s decision is a good one, and puts the decision about what happens to one’s creative works back in the hands of the creators, rather than unrelated third parties. Let’s hope that the parties can take the common ground achieved thus far and work toward a new settlement that maintains individual control over one’s works while still enhancing the public sphere.


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Comments about Judge Rejects Google Books Settlement
(Comments are closed.)

victorpbowling  2011-03-24 12:12
It's not a good idea to give Google that much power. They would virtually have a monoploy in the online book department. Aren't there antitrust laws in the US anymore? How are they getting so much control of online marketplaces? Next they'll control the =====pos system===== market too.
Good ruling! A private corporation should not be allowed this much power over our cultural heritage.

This is a project that should have been undertaken by the Library of Congress in cooperation with other national and university libraries around the world, in a coordinated joint venture.
Charles Robert Hayden-Gilbert  2011-03-28 19:33
In theory, I'm in favour of books being available online for download, just the same as I'm in favour of out of copyright orchestral scores being available for download. The downside to the digital revolution is that, unless publishers are willing to metamorphose and offer different ways of accessing their authors' works, then pretty soon, there'll be no more publishing houses. The music industry has changed dramatically, and for the better, with few studios going bust, and many independent "labels" emerging. Publishing needs to follow its example. Opting in for works out of copyright would be one way forward.
Dave Cortesi  2011-03-28 21:12
Google's response to "opt in" would be, that it would freeze many worthwhile books in limbo, undisplayable, because their copyright holders cannot be found and often, don't know that they are the right-holders of, e.g., something their grandad wrote. The task of identifying and contacting the often unaware owners of orphan books is beyond even google's resources.

The answer to that, and it would have been cool if the judge had suggested it, is crowd-sourcing. Organize a site where orphan books can be sampled, and say: to read this book, all you have to do is find the copyright holder and persuade him/her to opt in.

I can imagine a community of amateur sleuths forming around this, cheering each other on and aiding each other in the search for the elusive rights-holders.
Glenn Fleishman  An apple icon for a TidBITS Staffer 2011-03-28 21:22
Ah, but that's not what's advocated.

The judge wants opt-in as a basic measure, but he also suggests Congress is the appropriate arbiter of what should happen to orphaned works.

The proposal for legislation by the LoC + Registrar of Copyright lays out a straightforward approach of notification. There's nothing to stop a non-profit or crowdsourced effort or what have you from acting as a central clearinghouse of orphaned work contact attempts.

I like the crowdsourcing idea. Google and others could fund such an effort, but everyone would reap the benefit.
senortim  2011-03-29 13:49
From the tone of (some of) this article, Google sounds terrifying. But I'm curious: When has Google ever limited access to information? My understanding is that its business model relies on distribution of good information, and while some may take issue with its search ranking algorithms, to me, their approach seems beneficial to most.

I do think it would be great if Google gave all scans of orphaned works to some non-corporate third party (LoC or a foundation) -- I suspect their profit from opt-in works will more than compensate Google.

Also, I wanted to mention -- though it's a bit out of date now -- a discussion about this issue I saw on C-Span a few years ago. It was one of the most interesting discussions I've ever seen on TV.
Glenn Fleishman  An apple icon for a TidBITS Staffer 2011-03-29 14:08
It's not at all about limiting access. It's about creating a monopoly (Google) of information ownership coupled with a cartel (authors and publishers) that set prices. Copyright already provides a good means for the rights holders to set fees, but this would establish a broad-based pricing system.

Google would let everyone access everything for a price set by rightsholders. There would be no potential competition because Google would have a unique position indemnified by rightsholders on the one hand and empowered by the judicial approval of the settlement on the other.

No other service would be able to compete on price. No non-profits or other groups could make reduced-price or free access available on any terms.