Court Strikes Down Google Settlement and Part of Google Books
Court rules that fewer titles can be made available in Google Books.
"The benefits of Google's book project are many. Books will become more accessible. Libraries, schools, researchers, and disadvantaged populations will gain access to far more books. Digitization will facilitate the conversion of books to Braille and audio formats, increasing access for individuals with disabilities. Authors and publishers will benefit as well, as new audiences will be generated and new sources of income created. Older books -- particularly out-of-print books, many of which are falling apart buried in library stacks -- will be preserved and given new life."
- from the Judge's decision in the Google settlement case, before striking it down
Naturally, the Court struck down the deal that would have allowed all of these great things to go forward. This is Wonderland we inhabit, where up is down, good is bad, and old laws are applied in such a literalistic fashion as to have no relation to reality. It's like saying the government can tap your phone whenever it likes because the founders never specifically said you couldn't tap phones when they wrote the Bill of Rights in 1787.
The Google settlement arose out of Google's massive digitization project for old books. Google has scanned millions of books, and now makes them available online, some in totality, some through "snippets," some free, others for a fee.
There are three types of books: (1) out of copyright (pre-1923), (2) out of print but (maybe) still under copyright, and (3) in print. Google has a legal right to digitize and make available to the public those in #1 (out of copyright). Google has not attempted to digitize those in #3 (in print). The problem arises with those in the middle, books no longer in print, but possibly still under copyright.
Normally, if you want to use and republish someone's copyrighted work, you should first seek their permission. This was essentially the basis of Judge Denny Chin's decision. However, there is a problem here, what is generally referred to as "orphan books." Locating the holders of the copyrights of these books is virtually impossible. Anyone, with a little digging, can figure out who still holds the copyright for Gone With the Wind or The Great Gatsby. However, for every Gatsby there are thousands of books that disappeared from print decades ago, their authors long dead and forgotten, and whoever may own their copyrights essentially impossible to find. Chances are the legal copyright holders are a bunch of grandchildren or great grandchildren who don't know they hold these legal rights. They may not even know that Grandma wrote a book in 1925 that has been out of print and hasn't earned a nickel for anyone in 85 years. These books may be valuable for researchers and others, but fewer and fewer copies can still be found in libraries. Then, along comes Google, digitizes them for nothing, makes it possible to do keyword searches inside the book to find obscure references, and makes them instantly available to everyone around the world through the internet. Too good to be true? Apparently.
Organizations representing writers and publishers sued Google to prevent it from making these books available to the public without proper recompense. Fair enough. The copyright holders have legitimate rights. So, they sued. After long negotiations, Google reached a settlement with these organizations, the settlement that was just struck down by the court. It essentially provided that 63% of the proceeds from selling digital copies of these books would go to funds on behalf of the copyright holders, while Google would get the rest for the enormous investment in digitizing the books and making them available. Authors who put in their claims would be paid, funds due those who could not be found would be held for five years, and then given to literary charities. Any authors who objected to this arrangement could opt out and Google would strike their books from their database. This appeared to be a reasonable enough settlement for all parties involved.
Not so fast. A whole host of objections were raised, but the two that seemed to most reach the Judge's ear were copyright violation and anti-trust concerns. First come the copyright issues. We can have children living in rat-infested hovels, no food on the table, crime at the door, parents on drugs, and you will not get anywhere near the indignation that you will over the copyright rights of a long-dead person to a book no one has bought in decades. It's touching. The number of corporations, organizations, and individuals standing up to this terrible wrong was overwhelming. Some 500 petitions were filed with the court, the "vast majority" in opposition. It may be too late to protect Grandma, but we can still protect the rights of her 40 great-grandchildren to their 1/40th share in something financially worthless, and prevent the world from having access to this material in the process. Microsoft, Amazon, Yahoo, and a host of others, many competitors, objected. And, even though the settlement required Google to use "commercially reasonable efforts" to locate the rights holders, and let any who wished withdraw their books from the settlement's terms, the court just could not abide the injustice.
The court quoted a letter from two literary agents who "expressed this concern eloquently": "The situation we find ourselves in now is one of dismay and powerlessness, with only the weak ability to "object" or opt out. We beseech you to give authors back their rights." Powerlessness? Dismay? Weak ability to opt out? They send one notice to Google and they are out of this agreement forever. This is powerlessness? Literary agents don't know how to send a letter? We beseech you to get real.
Court Strikes Down Google Settlement and Part of Google Books
The Google Settlement is struck down by a federal court decision.
The other issue that seemed to weigh heavily on the court was that of anti-trust. Even the government objected on this one. The settlement pertained only to Google, in effect granting them a monopoly. We believe the argument to be specious. It applied only to Google because only Google was willing to invest the needed funds in this wonderful project to expand the world's knowledge. If the court is concerned that authors' and publishers' groups won't give similar rights to the next firm that digitizes these millions of books, it could have demanded the settlement be amended to say everyone is entitled to the same terms. The real problem is no one else wants to do this. Complainant Microsoft, no stranger to anti-trust-like practices, attempted a similar project a few years ago but bailed out, concluding there was not enough money in it. It might be nice if these others stepped up to the plate to compete with Google, but no one has. This is like denying a company that has developed a life-saving medicine the right to sell it because they have a monopoly. Damn the consequences! Of course, if that company, or in this instance Google, abuses this monopoly power, then our government can act to correct the problem. Ask John D. Rockefeller.
Ultimately, the Judge concluded the settlement was not "fair, adequate, and reasonable." He indicated, however, that it might pass muster if converted to an "opt-in" rather than an "opt-out" settlement. Of course, this brings us back to the "orphan" problem that led Google to proceed as it did in the first place. Finding those 40 great-grandchildren (and you better find 40, not 39), none of whom realizes they own a copyright, and getting them to opt in, is impossible. This is "reasonable?"
There is one other option the court recommended. That would be for Congress to pass legislation dealing with "orphan books." Of course, Congress has already had plenty of time to so act and has done nothing. Don't hold your breath. Congress had no problem dealing with a copyright issue a few years back when it added 20 more years to the length of copyrights. That was to prevent the Disney Company's exclusive rights to Mickey Mouse from expiring. This is the sort of issue that concerns Congress. However, with a bevy of heavyweight interests aligned against Google, don't look for Congress to take action over such irrelevancies as the public interest. Disparate factions in Washington may disagree on cutting spending vs. raising taxes, more government vs. less, guns vs. butter, but in the battle between special interests and the public interest, you can expect all sides will be united. Public interests don't buy seats at $1,000-a-plate fundraisers.
All of this is terribly ironic when one looks at the purpose of copyright law. It was not intended to restrict access to writing nor even to make writers rich. It protects writers financially to encourage them to write, which is encouraged because it makes more material available to the public. Now, in what may be the most important book copyright case ever, copyright law has been used to restrict public access to knowledge despite providing no meaningful financial incentive for writers. The Executive Branch of government offered no help, it having intervened on behalf of the objectors on anti-trust grounds. Evidently they believe that no supplier is better than one. Congress has only shown an interest in copyrights when it serves someone's special interest. And, the courts are filled with legalese but not common sense. They see the trees, but they can't see a forest.