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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:

  1. 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.
  2. 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.
  3. 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, 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.

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David Crotty

David Crotty

David Crotty is a Senior Consultant at Clarke & Esposito, a boutique management consulting firm focused on strategic issues related to professional and academic publishing and information services. Previously, David was the Editorial Director, Journals Policy for Oxford University Press. He oversaw journal policy across OUP’s journals program, drove technological innovation, and served as an information officer. David acquired and managed a suite of research society-owned journals with OUP, and before that was the Executive Editor for Cold Spring Harbor Laboratory Press, where he created and edited new science books and journals, along with serving as a journal Editor-in-Chief. He has served on the Board of Directors for the STM Association, the Society for Scholarly Publishing and CHOR, Inc., as well as The AAP-PSP Executive Council. David received his PhD in Genetics from Columbia University and did developmental neuroscience research at Caltech before moving from the bench to publishing.


12 Thoughts on "The Google Books Settlement: Where Things Stand, and Some Suggestions for What's Next"

On your three points: 1) Google’s interpretation of fair use (which relies on a tortured interpretation of the notion of “transformative use” as I have argued elsewhere) is favored only in the Ninth Circuit (plus one decision in the Fourth Circuit in the Turnitin case). But the Supreme Court has overturned the Ninth Circuit’s rulings ten times in a row, almost all with unanimous decisions, and is showing increasing irritation at that Circuit’s interpretations. This surely cannot be comfortable for Google’s lawyers. 2) The “opt in” approach preceded the Library Project and has been going on for years now. A great many publishers have signed agreements with Google to participate. No new effort is required. 3) One may indeed hope that Judge Chin’s message gets heard in Congress so that action is finally taken on the stalled “orphan works” legislation–just as Congress passed the 1976 Copyright Act and codified fair use in Section 107 after the Supreme Court deadlocked 4-4 in the Williams & Wilkins photocopying case.

1) All the more reason for Google to settle this lawsuit, even if the settlement does not give them a monopoly on the world’s literature.

2) Yes, but now they can expand their offerings to include out of print works that are still under copyright, where the copyright holders are known and opt-in. This gives them more books to sell, and an exclusive set of books that no one else can currently offer, as no one else has the scans and the permission.

3) One can only hope that the publicity from this case has helped. Surely more people now know what an “orphan work” is than did back in 2003 when Lessig was trying to get legislation passed.

I fail to see how any of your suggestions will find favour with Google. For reasons pointed out they are unlikely to go for option one, unless it’s a possible appeal against the decision.

Number two makes no sense, Google already has an ebookstore and opt-in changes nothing that they would care about from a business point of view.

With number three you suggest that Google throws away more millions in an attempt to help everybody take advantage of orphan works that they originally scanned. Evidently Google is now a charity as well.

There is nothing here for Google, so why should they proceed with any of this? As for the idea that Congress will soon modernise copyright in the interest of readers… well I guess we all have to believe in something.

As noted in the post, it’s what I’d like to see happen, not necessarily what will happen.  Though I have repeatedly tried to instill a regime of world domination, my plans have not yet reached fruition.

Option 1 is an absolute must for Google, regardless of what they do about their bookstore.  They’re facing a lawsuit claiming that they’ve broken the law.  They can either settle those claims or let it go to court, and as Sandy points out in the comment above, that’s a huge risk they’re likely unwilling to take.

Number 2 lets them greatly expand their bookstore with a vast amount of exclusive content.  They have out of print books that they’ve scanned where they can receive permission from copyright holders.  No one else has these scans.  As an example, a friend published a moderately successful novel 25 years ago.  That book is long out of print and the rights have reverted to her.  If her novel has been scanned by Google, she can now start selling the book once again through Google’s bookstore. No one else has an electronic version of the book and no one else would have permission to sell it.

Number 3, Google’s stated mission is “to organize the world‘s information and make it universally accessible and useful.” One would think that if there is any integrity at all left behind that statement, then opening access to this vast amount of literature would be a goal of the company.

To take a more cynical view, what is Google’s business model? Answer: to sell ads next to search content and other internet traffic. Regardless of the competition, increasing the amount of search content, increasing the amount of traffic, sells more ads and makes more money for Google. Adding the entirety of the world’s literature to their indexes would be an increase in content. Why does Google produce the Android operating system? They make no direct money from sales of the OS. Does that make them a charity as well? Why does Google run things like GMail, why did they create Wave? Again, no exclusive sales. More charity?

I’d also note that the sale of public domain books is, despite the open competition, a viable business. Joe Esposito wrote about this subject here. My former employer did quite nicely with a few reprints of annotated versions of early scientific works. Google, by virtue of their allegedly illegal scanning program, would have a massive head start on anyone else looking to enter this business.

You are undoubtedly much more familiar with the issues and I defer to your greater knowledge. That said I have a quibble or two.

On issue number two: I might be wrong but I fail to see how Google could have exclusive use of this content. Certainly no copyright holder would want to give them such rights, not least because their ebookstore is pretty much bottom of the pile saleswise.

Even with (temporary) exclusivity it would still be a case of Google having labored mightily to bring forth a mouse.

As to number 3 you have a point. Curiously though there seems little advertising hookups to their ebookstore, and without the orphan works the attraction of said store diminishes mightily. Some might also argue that Google is well on its way to becoming a media company. They also seem reluctant to sell public domain books, preferring to give them away free. Perhaps this is explained by the wretched state of many of their scans.

The real problem remains copyright, above all the problem of orphan works.

Of course many of these will be available to the denizens of the Land of Shadow, settlement or not. No doubt that is why many casts Congress in the role of Frodo, though given their record on copyright the figure of Saruman seems more fitting.

Please don’t take my willingness to publicly discuss the matter to be evidence of “greater knowledge”. These blog posts are often a way for me to clarify my own thoughts, and I always learn new things from the resulting comments.

2) By “exclusive” what I mean is essentially “de facto exclusive”. The rights holder would not give Google an exclusive license, but given that the book is out of print, there’s a hurdle for any other bookstore to clear before they can sell it as well. They would need to create their own electronic copy of the book, and track down the copyright holder which, as this attempted settlement has shown, is not an easy task for most works.

I do agree with you that these books are likely of low interest to readers. Joe Esposito put it nicely recently, “There is a reason books went out of print in the past, a reason that orphans are orphans. These are books of marginal value to higher education, as the historical lack of demand demonstrates.” But one must remember that Google deals in bulk. They sell tiny little ads for tiny amounts of money, but they sell so many of them that it adds up to an enormous sum. Here, you’re potentially talking about millions of books, so there is still some revenue potential there regardless of individual quality or interest.

3) I do think there are other reasons Google’s bookstore, if they ever figure it out and make it work nicely, may have advantages. It’s not tied to a particular device, like the iBookstore or one App Store with onerous policies. And if the idea of storing things in the cloud ever catches on, they’re ahead of the game. But the ad sales I’m speaking about come more from their search engine than the bookstore itself. If you start including book content in with the general web content searches, then they’re massively increasing the amount of results they can deliver, hence more ads. Even if you keep the book search separate, ala Google Books (a different entity from the Google eBookstore), you’re still providing lots of content against which to sell ads.

And I think Congress goes the way business wants it to go. He who wields the campaign donations has the loudest voice. And given Google’s cash on hand, there’s no reason they can’t be heard.

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