The Google Books settlement should teach the company humility. It won't.
Google has been humbled.
For a company with the audacity to make "to organize the world's information and make it universally accessible" its mission statement, it takes a lot to take Google down a peg.
But yesterday federal Judge Denny Chin did just that. He ruled—after more than two years of study and debate—that the elaborate new used-book store that Google had designed in collaboration with the most elite authors and publishers could not stand. Or, at least, Chin ruled that the methods Google chose to build this massive digital bookstore, now called Google Books, was improper.
Back in 2004 Google shocked the publishing world by announcing that it had been for some time secretly scanning books from major university libraries. Some of these libraries were allowing Google to scan in books that were clearly still covered by copyright. Google tried to convince everyone that this was all just fine under U.S. copyright law by asserting that we readers would only get to experience "snippets" of the entire book that sat in Google's servers.
This, to Google, was an example of "fair use," a defense used against an accusation of copyright infringement that gives the public a way to deploy portions (or sometimes all) of a copyrighted work for some publicly valuable use. Critics, journalists, teachers, and scholars rely on fair use every day to quote from copyrighted sources. But what Google proposed was wholesale and revolutionary: It would have turned the copyright system on its head and redefined fair use in ways that were never intended.
Unconvinced and undeterred by this novel claim of fair use (Google was, after all, making entire copies of copyrighted works for the sake of a commercial enterprise that would enhance its core revenue source—Web search), the American Association of Publishers and the Author's Guild filed suit in the Southern District of New York.
After four years of arguments and discovery, the parties came to a settlement that was as brilliant in its design as it was audacious in scope: Google would be immune to infringement claims for what it had already scanned from a broad class of copyright holders. Google would pay $45 million in damages to copyright holders. And then Google would set up an online bookstore that would split the revenues for sales of digital copies of the vast majority of books published in the 20th century. Readers would be able to access millions of books they currently can't find or have trouble getting through libraries. Authors and publishers would get at least some revenue for books that currently sit idle and unprinted, long forgotten because the market for them was too small. At first glance, everybody would win.
There were some troubling aspects of this proposed settlement, however. Most clearly, Google was in a position to set the price of these electronic books. And there was no feasible way another firm could compete in that market. There were no guarantees that Google or the publishers would protect user privacy when using the Google Books site. International authors, who don't work under a copyright regime that respects fair use anyway, were deeply troubled by having Google copy and sell their works without negotiating specific terms. The libraries that donated millions of dollars of content to Google so it could go ahead and make big bucks were not insulated from liability under the settlement, to which they were never parties in the first place. And while the settlement appropriately insulated Google from suits over scans it had already made, the settlement also insulated Google for scans it would make in the future, infringing the rights of authors who could not be found.
That meant that these missing authors of "orphan works" could never properly defend their interests nor negotiate the rights to their work.
But Google answered this challenge the way it always does, by offering the missing parents of orphans the opportunity to opt out of the system. This has long been Google's default position on all its controversial actions: There is no problem here as long as we give people the chance to opt out. The default may work in Google's favor. But the empty "freedom" to opt out (even if one has no idea one might want to) seems to carry the day for Google.
Siva Vaidhyanathan is a professor of media studies and law at the University of Virginia and the author of The Googlization of Everything and Why We Should Worry.