On Tuesday, Judge Denny Chin rejected the amended Google Books Settlement (a PDF of his decision can be downloaded here). Though this rejection certainly slows the pace of making orphan works available, in the long run, it’s in the best interest of readers, authors, publishers, and any booksellers who don’t happen to be named “Google.”
For those completely unfamiliar with the class action lawsuit, a brief recap:
Google has scanned more than 12 million books, created an electronic database, and made text available for online searching. Because millions of these books are still under copyright, a lawsuit was filed in 2005 alleging that Google’s actions here were illegal. The suit was granted class action status, and a settlement was negotiated between the Author’s Guild and Google. The first draft of the settlement was rejected by the court, and now their second attempt has reached a similar fate.
Judge Chin’s recent rejection was based on the following factors (see James Grimmelmann’s piece for a thorough analysis, and a list of articles on the decision can be found here). Note that the actual reason for rejecting the settlement is that it grants Google amnesty for future acts (the second point below). All of the other issues are listed as “concerns” but no direct ruling is offered:
- Adequacy of Class Representation: The settlement was found not to be in the best interests of many of those represented by the Author’s Guild.
- Scope of Relief and Scope of the Pleadings: The settlement goes way beyond the legal question of the lawsuit (i.e., Is Google’s scanning and indexing “fair use” or a violation of copyright?) and instead creates a “forward looking business arrangement.” Judge Chin scolds Google for flouting the law, taking shortcuts, and employing a business plan of, “So sue me.”
- A Matter for Congress and Copyright Concerns: The settlement would essentially rewrite copyright law without the consent of Congress. The settlement would allow Google to expropriate the rights of copyright owners without their consent. An “agreement between private, self-interested parties” should not be a way of rewriting the law of the land.
- Antitrust Concerns: The settlement would give Google an exclusive right to access and exploit orphan works, essentially an unchallenged monopoly on this business. It would also greatly enhance their general search business, giving them an advantage that no competitors could match without violating the law themselves.
- International Law Concerns: Though Judge Chin chooses not to rule whether the settlement violates international laws and treaties such as the Berne Convention, he notes that it is a concern, and yet another reason why rewriting copyright law should be left to Congress.
So where does this leave things?
Judge Chin did not reject the settlement outright — he left things open for further attempts at getting things right. He does suggest that most of the issues with the settlement can be solved by making inclusion in the index “opt-in” rather than “opt-out.” This is a serious blow to Google’s business plan, but ultimately in the best interest of the public.
There is great merit in what Google is trying to do, but the way their doing it is problematic. Making the world’s literature searchable enables discovery on an unprecedented scale. Bringing orphan works back to life is a tremendous boon to the world’s pool of knowledge, as it would recover vast amounts of potentially lost information.
The problem though, is that Google is trying to do all this privately, to sell all of that information through its own bookstore, to put it behind its own paywall. The key word in the phrase “public domain” is “public.” We need a settlement that opens this material, essentially our cultural heritage, to all of us, not just to one for-profit company which could operate without competition.
Here’s where I would like to see things go:
- Resolve the actual issues in the lawsuit, either by settlement or letting it go to court. Personally, I think Google’s actions here are likely fair use, but putting that decision in the hands of a court may be a risk Google is unwilling to take. If it’s not fair use, then the legality of a search engine that spiders the internet comes into question, putting Google’s enormous advertising empire in jeopardy. Can the parties involved simplify the settlement to answer just this question? If approved, then this helps readers, authors and publishers by increasing discoverability of books.
- Create the proposed bookstore but do so on an opt-in basis. This won’t even require any sort of court settlement, simply open a new business and start collecting participants. It won’t be the complete set of literature that Google is ultimately trying to build, but it is a start, and will be a valuable resource. There are huge numbers of books that are out of print where the copyright owner is known that could be included here and brought back to availability. It will also be an opportunity for Google to work out their problematic ebook platform, and put them in good shape for step 3 below.
- Work with Congress on finally passing legislation that covers orphan works. Let’s put some of Google’s billions behind lobbying to get copyright law modernized. New laws will make orphan works available to everyone, not just one monopoly, so Google, Amazon, Microsoft, Barnes & Noble, Apple, Project Gutenberg, archive.org, and any other players will be on an even field. This creates a competitive market for this material and returns our cultural heritage to the public. I’d like to see a revival of some of Lawrence Lessig’s proposed legislation regarding orphan works as the basis for new laws.
Judge Chin is holding a press conference on Friday to discuss his decision further, so we’ll hear more details on his reasoning then. And this case is far from over. But it’s become evidently clear (as predicted) that this unfair settlement will not be approved, and Google is going to need to rethink their business plans. My suggestions above are still in Google’s best interests, they just don’t provide the overwhelming market dominance they were trying to achieve through this settlement.