The deal was almost done. In June, a tense four-year period of legal conflict between publishers, authors and Google over its library scanning program was poised to end with the approval of a visionary class action settlement. But just one week from a key May 5 deadline—by which authors and rights holders opposed to the settlement (agreed to last October; see time line) would have been required to opt out of or object to the deal—the federal judge overseeing the approval process surprised court watchers by granting a four-month extension, asked for by a group of authors led by Gail Knight Steinbeck. Suddenly, a deal that had looked all but certain just weeks earlier now seemed in serious jeopardy.
“This thing is going to die,” one close observer of the settlement told PW. “Let's put it this way—with all the sketchy things in the agreement, there is no way [the parties] want people to look at this longer, rather than shorter.”
Say what you will of the Google Book Search settlement, one thing it is not is the path of least resistance. The solution to what began in 2005 as a simple copyright question is now a complex blueprint for an entirely new digital book business, a $125 million legal puzzle that involves a dizzying array of moving parts: thousands of authors, millions of titles and editions, libraries, public interest issues, murky copyright law, orphan works and even the creation of a new, central rights-granting authority in the U.S., the Book Rights Registry. One notable thing the settlement doesn't do, however, is address the original claim in the suits—whether Google's scanning of library books to create an online index is legal.
For publishers and authors, that means the stakes are sky-high: if this settlement fails to win approval—and opposition is gathering momentum—what happens next? “Back to the world of private deals for putting books into digital formats,” suggests James Grimmelmann, a professor of law at the New York Law School, who has written extensively on the settlement. “No deals at all for orphan works, and one very big lawsuit over scanning and searching.”
Defending the Settlement
“The task before us was to take Google's audacious library digitization project and transform it into something both good for readers and agreeable to the people who write and publish books,” Authors Guild president Paul Aiken said last October, announcing the settlement. “To do that, we found we had to make the project even more audacious.”
What may be the most audacious thing of all, however, is the enormous gamble publishers and authors orgnaizations have made. Specifically, betting that this sprawling, private licensing deal, crafted in response to a rather straightforward copyright question, would not only survive an unpredictable class action legal process but would do so in time to have a chance of actually working in a rapidly evolving digital marketplace. Whether the settlement is quickly approved, sent back for modifications, or rejected altogether, one has to wonder: was there not a better, simpler—and quicker—solution to making books discoverable on the Web than years of expensive, uncertain class action litigation?
For Google, the settlement is a no-brainer. For $125 million, pocket change to the well-capitalized search giant, the company now stands to secure a license to the entire U.S. book backlist, including exclusive access to orphan works, all while ending its legal exposure for infringement. If $125 million seems like a lot, it pales in comparison to the potential damages Google faced for the unauthorized scanning of millions of works. But Google's lead engineer on the books project, Dan Clancy, says Google's decision to settle was ultimately based on something else: it was better for users.
Even if Google had prevailed with its fair use claim, Clancy explains, that ruling would only have facilitated its book scanning. Its display still would have been limited to brief “snippets.” The settlement, if approved, would allow users to access more books and view significantly more content, as much as 20% of a book. “We didn't start this to win a court case on fair use,” Clancy said. “We started it to provide discovery tools. We assume we would've gone through the courts and won. But once we won, we still would've had snippets. Really, the only solution was a partnership.”
However long the settlement process may take, it appears that time is on Google's side. Google officials say its partner program, a separate venture from its library scanning that scans books and displays them online with permission, now has more than 20,000 participants, including all of the major houses. That's double the number of partners it claimed just two years ago. The subtext is clear: one way or another, Google will get books.
On the other hand, despite acknowledgements that Google's scanning program offered potential benefits for books, publisher and authors have not been able to get past the copying issue. “It's the appropriation of our material for commercial benefit,” Nick Taylor, then president of the Authors' Guild, said at a November 2005 forum at the New York Public Library. “None of us wants to be invisible on the Internet. We recognize how suicidal that would be. The principle here is that we want to control our material.” Whether the issue of control raised by Google's scan plan will justify years of legal action remains to be seen.
Library and Orphan Issues
Is the settlement in jeopardy? “Complete hogwash,” one major publisher says, strongly dismissing talk of the settlement's being embattled as the grumblings of would-be competitors, adding that criticism and objection are part of every class action legal process. Perhaps—but as Steinbeck's attorney, Andrew Devore, pointed out in his motion to the court, “this is not a typical class action settlement.” Rather, he observed, “it is a decision about perpetual future rights,” and rights that “may well prove to be the most important and valuable channel for the distribution and exploitation of creative works.”
Embattled or not, concern is mounting. When the deal was first announced, the reading public seemed on its way to having access to the kind of universal library that only Jorge Luis Borges could have imagined—every book in print and out of print searchable at the touch of a screen, with commerce welcome, rewarding publishers, authors, estates and the host to it all, Google. The library community, however, partners in Google's scanning efforts as well as publishers' best customers, have greeted the settlement with a mix of cautious optimism and concern.
“The Settlement is potentially so far-reaching that its full implications are unknowable at this time,” notes a brief filed by the major library organizations in early May, comments that court-watchers say the judge will consider closely. The plan could very well lead to “a restructuring of the publishing industry and a dramatic change to the nature of libraries.” Specifically, librarians warned that the potential high costs and unclear controls over Google's database could compromise “fundamental library values” such as equity of access to information, patron privacy and intellectual freedom.
Notably, despite a litany of concerns and obvious unease, the library community did not oppose the deal. That's partly out of an underlying belief that the benefit of a massive database of book content helps them fulfill their mission, and partly, no doubt, because of risk. Should this deal fail, libraries could face legal exposure for their own digital library initiatives, and possibly for their contributory role in Google's book-scanning efforts.
The Internet Archive in San Francisco, meanwhile, is at the fore of a growing number of organizations that are urging the court to reject the settlement, claiming the deal amounts to “private orphan works legislation.” Orphan works are those books published after 1923, but for which there is no identifiable copyright owner. Experts say these works constitute a sizable majority of the books on library shelves; Google has already scanned as many as five million books in this copyright twilight zone and reportedly plans to scan another 15 million.
What's the problem with the orphans? Under the settlement, Google would be allowed to scan and make these works available without fear of legal action should the copyright owners step forward. The settlement parties claim the settlement plan is actually good for orphan works, that it would, over time, little by little, eliminate the issue entirely, because, given an economic incentive, authors are more likely to come forward and claim their rights. The Internet Archive, however, which includes the Open Content Alliance, a competing book-scanning project that would very much benefit from the same protections granted to Google under this deal, objects. “If the settlement is approved, it would be legal protection for Google, and only for Google,” IA founder Brewster Kahle argues. “I, personally, am amazed at this creative use of class action law. The three parties have managed to skirt copyright law, bypass legislative efforts and feather their own nests—all through the clever use of law intended to remedy harms.”
Here Come the Feds
In addition to all the players in this deal so far, Google, publishers, authors, libraries, and the judiciary, two additional players have yet to put their cards on the table: the executive and legislative branches of government. The most stealthy, yet perhaps serious threat to the deal right now may come from federal antitrust regulators. In his detailed critique, published shortly after the settlement was announced, New York Law School's Grimmelmann was among the first to point out the numerous antitrust issues raised by the settlement. In April, publishing officials confirmed that the Department of Justice had inquired. While the DoJ will not comment on the extent of its interest, government intervention now looms as a potentially significant obstacle.
“Google isn't a guild, and it didn't set out to create a monopoly,” Harvard University librarian Robert Darnton argued in the New York Review of Books. “But the class action character of the settlement makes Google invulnerable to competition.”
That's because most U.S. book authors and publishers are covered by the settlement, he argues. “They can opt out of it,” Darnton notes, “but whatever they do, no new digitizing enterprise can get off the ground without winning their assent one by one, a practical impossibility, or without becoming mired down in another class action suit.” In other words, if this settlement is approved, any competing effort would have to go through the same, or an even more arduous process—an insurmountable barrier to entry for would-be competitors. While the architects of this deal insist the issues are minor and should not keep the deal from approval, such criticism certainly does not bode well for a comfortable road ahead.
Meanwhile, a number of the deal's critics suggest that Congress should have a role, stating that the issues here are too broad to be solved via a class action. So far, Congress has barely taken note. At a Columbia University forum on the settlement this winter, Register of Copyrights Marybeth Peters told attendees that not one member of Congress had asked the Copyright Office to comment on the settlement, despite the fact that the deal could fundamentally affect both user behavior and the industry. If this complex deal somehow manages to get tied up in the legislature, all bets are off.
The judicial process, of course, still looms as the biggest threat. Consider this: in October, right around the same time the Google settlement is to get its fairness hearing, the defining legal drama of the digital publishing era so far, the class action settlement part of Tasini v. New York Times is scheduled to go back to the U.S. Supreme Court, more than four years after that deal was reached—and some 15 years since the initial suit was first filed. While Tasini, a class action case involving freelance articles used without permission in digital databases, draws only indirect comparisons, its underlying lesson is clear: class action is an unwieldy beast. Over the next four months, the parties in the Google settlement will hope for a definitive result. If, however, years from now the Google Book Search settlement is still not in place, whether because court approval is still at issue, or implementation of the deal is buckling under its own weight, the big loser will be books.
