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Mar 22 2011

Google Hits Speed Bump In Its Attempt To Own the Written Word

Its not getting  a lot of attention outside of publishing circles, but internet giant Google is  trying to digitize and sell every book ever created.  Google has scanned more than 12 million books into its library since 2004, when it reached agreements with several major research libraries to digitally copy books and other writings. Originally, Google claimed it was just scanning every book on earth so that they could be searched later and Google would be able to pull up  “snippets” for researchers or net surfers from the digital library. Use of small portions of a book, like quotes , is a “fair use” and therefore  not copyright infringement under US copyright law.  This was important as Google was not bothering to get permission from the authors to use their books in this fashion. Sounds like a great idea. But publishers and authors alike feared losing their rights in their own works, banded together and brought class action claims against Google in a case called The Authors Guild v. Google pending before Judge Denny Chin in the Southern District of New York.

Google decided to settle the matter for $125 million dollars (roughly the company’s monthly Starbucks bill) but in return for this payment wanted the right to sell any books that were unclaimed by authors and to receive about a third of the income from sale of claimed works. The agreement was presented to Judge Chin for approval this week and the judge rejected the settlement saying it

“would grant Google significant rights to exploit entire books, without the permission of the copyright owners. Indeed, the Amended Settlement Agreement would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copyrighted works without permission, while releasing claims well beyond those presented in the case.”

Remember that this was originally brought to deal with “snippets” and now Google was going to get the right to exploit millions of books in their entirety. The real problem the judge had with agreement is that authors had to specifically opt-out of the deal if they didn’t want their works to be managed and sold through Google.  He said that it would be fairer if authors had to expressly say they wanted to be part of the deal.  And that makes sense because then it would be no different than an author assigning his rights to someone else for a portion of his royalties. But what about authors who did not know of  the deal?  And what about works that have been dormant and unclaimed but could maybe be re-circulated or re-published for a new audience?

Google HQ

The court recognized that the deal has many benefits. He said more books would be more accessible, especially for “libraries, schools, researchers and disadvantaged populations,” and the digitalization will speed the conversion of books to Braille and audio formats.”Authors and publishers will benefit as well, as new audiences will be generated and new sources of income created,” he said. “Older books—particularly out-of-print books, many of which are falling apart buried in library stacks—will be preserved and given new life.”

But while all of this is laudable and beneficial to society, it is dangerous and wrong to give one company this much control over volumes and volumes of literature. The United States, Amazon and Microsoft all raised antitrust concerns in the case, which the judge said “would give Google a de facto monopoly over unclaimed works” and “arguably give Google control over the search market.” Just think about it what other company could ever compete against Google under this scenario? Google was essentially using this case to solidify its stake in a future business plan and business market that went well beyond what this case was about. You have to give tremendous credit to Google’s litigation counsel, the San Francisco litigation boutique Durie, Tangri for crafting this settlement agreement and nearly pulling it off. Rest assured they will quickly try and fix the concerns Judge Chin expressed and present a new package at the next settlement conference on April 25.

I expect that the court will eventually let this get settled in some fashion.  What that will mean is that Google would have control over the digital commercialization of millions of books that it obtained through “wholesale, blatant copying” (to quote Judge Chin) without first obtaining permission. For the last decade or so,  media has been consolidated into a few companies that own and control most of the music that we hear and television programming that we see. Its not surprising that Google, with its incredible capital base, would try and consolidate literature under its wing. Let’s hope Judge Chin is able to continue to guarantee that fairness and competition don’t get eaten up in the process.

Here’s a link to the 368 page settlement agreement if you’re in the mood for a little light reading:

http://www.nylj.com/nylawyer/adgifs/decisions/111909googlesettle.pdf

 

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