The Google Books settlement should teach the company humility. It won't.

The law, lawyers, and the court.
March 23 2011 5:33 PM

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The Google Books settlement should teach the company humility. It won't.

Google headquarters. Click image to expand.
Google headquarters

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.

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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.

Not this time. Judge Chin considered the various objections to the settlement and decided that he need not resolve conflicts about copyright, privacy, or even the obvious anti-trust issues. Chin just made a common-sense ruling that basically said a class-action settlement is not the right instrument for making such major policy decisions. "First, the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court," Chin wrote.

This was ultimately a technical ruling based on rules of civil procedure that govern what class-action settlements should and should not try to accomplish. As New York Law School professor James Grimmelman wrote on his blog: "Chin has set up a dichotomy: Google's past conduct in scanning and searching was the subject of the lawsuit, but it is Google's future conduct in selling whole books that would be authorized by the settlement. The case 'was not about' the same things the settlement is."

Google has been trying to get away with moves like this for a long time. Back when Google's founders first dreamed up this project, they could have recognized that copyright makes such endeavors hard and expensive, if not impossible. They could have, and should have, sought a change in copyright from Congress.

Having failed that, Google's leaders could have reached the same settlement, while acknowledging that they can't get away with asking long-lost authors to assert their rights that they might not even know they have through a system they might not even know about. They could have, as Chin suggests at the end of the ruling, designed the system so that rights holders could opt into it rather than have to opt out of it.

But that's not Google's style. It never has been. Google always scans first and asks questions later. Its leaders are convinced of their own righteousness and prowess, confident that people will find their services so cool and indispensible as to be quickly adopted as essential in their daily digital lives.

Even after the plans for this massive online bookstore were clear to everyone, exploding the illusion that Google was actually working on some sort of benevolent "library" that would serve the public interest, Google co-founder Sergey Brin in 2009 wrote in the New York Times anop-ed titled "A Library To Last Forever." In the article, Brin makes the specious claim that Google Books exists to preserve hundreds of years of knowledge and cultural heritage. "Because books are such an important part of the world's collective knowledge and cultural heritage, Larry Page, the co-founder of Google, first proposed that we digitize all books a decade ago, when we were a fledgling startup," Brin wrote. At the time, it was viewed as so ambitious and challenging a project that we were unable to attract anyone to work on it. But five years later, in 2004, Google Books (then called Google Print) was born, allowing users to search hundreds of thousands of books. Today, they number over 10 million and counting."

Librarians who are active in preservation scoffed at this notion, as Google's scanning quality is far below the industry standard for preservation and its focus on speed and size trumped concerns over the quality of search results. Brin still wanted to sell his proposed system as a public service rather than what it clearly was: a brilliant and useful bookstore that could benefit readers, authors, publishers, and—above all—Google. That's not a bad thing, by any measure. But it's not the same as serving the public. We conflate markets and publics at our peril.

The thing is, Google is usually right about the consequences of its audacity. Most of the time we all just celebrate what Google lets us do, largely unaware or unconcerned about the soft power Google exerts over our information ecosystem. After all, it's all so very cool. And it's all so very free—or so it always seems. That's one of the reasons there have been no massive uprisings in the United States over Google Street View, unlike in Europe, where Google faces significant public and legal challenges over the service.

This decision to scuttle the Google Books settlement marks a turning point in Google's ambitions. Between being slapped around by China in the past year and now getting its rather creative class-action settlement rejected, Google might finally learn some humility.

Perhaps we can all now realize that Google is not some benevolent giver of life and knowledge, but just another company, albeit a brilliant and profitable one. And maybe one day soon Google's leaders will acknowledge that fact as well.

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.