If the Google Book Search settlement is not approved, it would be “an appalling disaster” that could mean years of continuing litigation and potentially tens of millions of dollars in legal costs, said Macmillan CEO John Sargent in a visit to PW's offices last week. Sargent, one of the deal's architects from the publishing industry (along with Bertelsmann's Richard Sarnoff), said critics of the agreement were missing the big picture, and he emphasized that it offered a chance to reinforce the rights of copyright holders and “set rules for the future use of digital databases.” At the same time, Sargent conceded that he and the deal's other negotiators have done a “bad job” explaining just what this agreement means to the industry, and vowed to ramp up industry and public awareness efforts in the coming weeks.
In a wide-ranging, two-hour discussion, Sargent gamely recapped the long path that led to settling lawsuits filed by the Authors Guild and the publishers in 2005 to stop Google from scanning and creating digital files from library collections. “It became clear that the stakes were high,” said Sargent, describing a change that came over both parties as they negotiated with Google. Indeed, Sargent said, the realization of what was at stake brought the AAP and the Authors Guild—generally at odds with one another—closer together to face Google. “We had a natural alliance,” Sargent said. “There were very difficult moments, but we were united at the table.” Now, of course, they are united with Google as well.
Sargent said he was taken aback by criticism of the deal in PW's May 25 cover story, “Deal or No Deal,” and acknowledged that the deal's supporters must do a better job of articulating its benefits. He said that supporters had perhaps been lulled into a sense of the deal's inevitability—a sense that was shattered after a federal judge overseeing approval of the settlement granted a four-month extension to the deadline to object to the deal and the Department of Justice started making antitrust inquiries. Sargent stressed, however, that critics are making a “huge mistake” and playing a “dangerous game” by attacking the agreement piecemeal and ignoring the deal's overall benefits: a landmark agreement that would facilitate the scanning of millions of book titles; offer libraries a massive digital database of books, in print, out-of-print and orphaned; and generate income for rights holders. Sargent said money was never really an issue in negotiations—although he said the deal could yield potentially “huge revenues” from subscriptions to the unparalleled database of book content it would create.
While seeking to disarm the deal's critics, he acknowledged that the current chorus of complaints was not unanticipated. He allowed that the complex agreement may give Google a monopoly over the right to exploit orphaned works in the short term; he admitted that questions remained about how exactly the Book Rights Registry will function, and he understood the complaints from European publishers and rights holders that they weren't consulted, even though they have legitimate interests at stake. Sargent said that at times the parties were working “at the edges of class action law,” but insisted that this was necessary to achieve a solution. “I would have liked to have seen this deal be about 20 pages,” he said of the 300-plus—page document, “but we just wouldn't have gotten it done.”
And while the agreement does give Google a special interest in orphaned works—works that are believed to be under copyright, but whose owners are not easily identified—Sargent explained that it was the result of the limitations of using class action law, and, he added, the agreement would have a positive effect by bringing absent copyright holders out of the shadows to claim payments and control of their titles.
Of course, questions remain. Why weren't Euro-pubs consulted? Why weren't antitrust issues anticipated? Suppose orphaned books—in a world of POD, e-books and Web-enabled titles—turn out to be wildly profitable and mostly ownerless? What if Google, in the coming generations, turns out to be not such a beneficent force for good? Such possibilities, which Sargent recognized, should nonetheless not stand in the way of this landmark deal, he said, given what he sees as its enormous benefits.
With rights holders now facing a September 4 deadline to opt out or file objections, expect tensions to rise as comments are filed with the court and the settlement enters a critical phase—a phase in which Sargent grants that he, and the rest of the agreement's supporters, need to start talking, loudly and clearly, about what this deal's success means to both the industry and the public.
