"The petition for a writ of certiorari is denied. Justice Kagan took no part in the consideration or decision of this petition."
With that two-sentence order, the Supreme Court brought the long-running Google Books case to a close on April 18. After ten years, two lawsuits, one failed settlement, a parallel case against Google's library partners, and five landmark copyright decisions there is nothing more for the courts to say. Google Books is legal. Full stop.
If the news felt a bit anticlimactic, it wasn't just because of the Supreme Court's dull legalese. Google’s scanning project and the subsequent lawsuits once commanded the attention of the publishing and library worlds. But over the years they became peripheral. As Google copied some 20 million volumes from library shelves, the sky did not fall on publishers, or copyright owners. Rather, the end of the litigation merely confirmed a few realities of modern publishing.
First and foremost among these realities: digital is here. It's staying. It's a thing. In 2004, when Google began its scanning project, the most alarming aspect for many was that it amounted to an involuntary transition from print to digital. A decade later, print and digital are coexisting and the level of comfort with digital books is high, and rising. Turning paper into pixels no longer comes with the shock of the new.
Technologists, on the other hand, feared that a loss in the Google Books case would devastate innovation in any business that so much as breathed on a copyright. When the Authors Guild and a group of publishers first sued Google in 2005, the ink was barely dry on the earliest holdings that search engine indexing was a fair use, and the legality of creating search engines for copyrighted content was still subject to serious dispute. Those fears have subsided. Judge Pierre Leval's magisterial opinion in the Google case is an authoritative restatement of modern fair use, but it breaks no new ground. After a decade of legal decisions, the proposition that search engines are fair use is so well established as to be boring. While there are still interesting cases at the margins (what counts as a search engine? And when does a search engine go too far?) technologists today have secured their landing zone.
Meanwhile, the legal storms of the last decade have swirled elsewhere. Remember that time the CEOs of five major publishers conspired with each other and Apple to fix e-book prices? The entire agency model controversy—from when Amazon first started talking with publishers about a futuristic new device it was calling the Kindle, to the Supreme Court's decision not to hear Apple's appeal in its price-fixing case—took place while the Google Books litigation was pending before the courts. As someone who followed every twist and turn, it pains me to admit it, but the Google Books litigation turned out to be a decade-long distraction from the genuine tectonic shift taking place in digital publishing.
There was a time, of course, when it seemed like the Google Books litigation might actually be a key instrument in the transition from print to digital. From October 2008, until it was rejected in March 2011, a proposed settlement sought to turn Google’s index into something of an online bookstore. But the settlement was at once too ambitious and too restrictive to do what the industry needed. Its attempt to draw in out-of-print and orphan books took it far beyond what class action law is designed for. And, its Google-only nature made it unsuitable as a long-term foundation for a diverse publishing ecosystem.
The great irony is that books have become something of an afterthought for Google. Today, Google Books is a bit of a ghost town. The Google Books blog, and Google’s library newsletter were shut down long ago. And the leading visionaries behind Google Books have all moved on to dream other dreams. The initial fear that Google would dominate publishing, crushing all beneath its robotic boots, was once at least plausible. But Google Play Books is now a punchline, as is the idea that the revenue generated from searches and snippets of out-of-print books was a treasure trove stolen from rightsholders.
If the breathtaking ambition of the Google Books settlement was its undoing, however, such ambition also galvanized new thinking about how to carry forward the centuries of our cultural legacy locked away in print. The HathiTrust, a coalition of research libraries, used the digital copies Google gave back to its members to provide full-text digital editions to print-disabled students, for example, setting a new standard of inclusive access. The Digital Public Library of America now brings together librarians that want to do everything they can for public access to books within the confines of current copyright law. And the Copyright Office has begun to study how licensing systems could potentially enable even more access.
So, hail and farewell to the Google Books case. Born in controversy, it mellowed with age. Though its end is mourned by a few, its legacy will be remembered by many.
James Grimmelmann is a Professor of Law at the University of Maryland Francis King Carey School of Law and a Visiting Professor at the University of Maryland Institute for Advanced Computer Studies, and a former contributing editor for Publishers Weekly.
