March 28, 2011 at 2:19 PM ET
By Siva Vaidhyanathan
The seven-year saga of Google’s attempts to scan millions of books in dozens of languages and offer them to readers around the world is far from over.
Over the next few months Google and its opponents in the copyright lawsuit over the massive book-scanning project will forge a new way forward. The project could take a new form. It could disappear. Or it could serve as an opportunity to enhance our information ecosystem in powerful new ways.
Last week, U.S. Circuit Judge Denny Chin rejected a class-action settlement between Google and the plaintiffs that sued Google for copyright infringement: The American Association of Publishers and the Author’s Guild.
Google is not saying much about how the company is likely to proceed. So, many of us are just guessing. But we can explore the possibilities and assess the risks and benefits of each. Beyond that, there are two major legislative moves that we citizens can push for if we want companies like Google or institutions like libraries to be able to build impressive digital collections of the world’s knowledge.
The settlement had been on the table for two years as Chin studied it and many pundits and professors debated its merits. Chin ultimately decided for some fairly technical procedural reasons that a class-action settlement was not the right forum for a significant change in how copyright and publishing law should work.
Scanning effort announced in 2004
The whole story started back in 2004 when Google announced it would scan in millions of books from dozens of libraries around the world — many of the titles clearly still covered by copyright.
At first, Google tried to assert a “fair use” defense, claiming that the user would only see “snippets” of text when searching through a copyrighted work. If the work had been published before 1923 and thus is in the public domain, Google would offer the entire text. Under the original plan, Google pretended to be like a library. It had no plans to sell copies of the books it had scanned. It merely wanted to enhance its search services and fulfill its corporate mission, “To organize the world’s information and make it universally accessible.”
But under the settlement agreed to in 2009, Google abandoned its pretentions to act as a library and instead embraced its new role as one of the leading vendors of electronic books. Google would not be liable for any of the copying it did before or after the settlement. Google would pay $45 million in damages to copyright holders. And Google would sell electronic copies of millions of out-of-print books, many of which are “orphaned” because no one can find the copyright holders now, for prices that Google alone would set.
It was clear from the date of the settlement that this would cause major anti-trust problems. But ruling on complex anti-trust questions was not Chin’s job in this case. Nonetheless, he acknowledged the threat in his ruling while stating that it was not decisive.
A way forward
Chin did suggest a way forward for Google and the plaintiffs. If they would revise the settlement so that copyright holders (authors, their heirs, and often publishers) had to opt in to the system, rather than include them by default and allow them to opt out of it, the new system could pass legal muster. So that’s one possibility, and many legal experts see this as the most likely next step. It certainly entails the least risk for all parties. No one wants to pay lawyers for more than seven years of work only to lose a case in court that could substantially alter copyright in the 21st century.
Thus the newly humbled company would have to downgrade its ambitions. We might finally see it as just another online vendor instead of the savior of the universal library. That would actually be very healthy for us and for Google.
There are a few more possibilities. The least likely path is that Google would fold up the Google Books library scanning project, decide that it’s just not worth the hassle and risk, and continue to offer for sale authorized electronic copies of recent publications. This is unlikely largely because Chin’s ruling does not prevent Google from continuing to scan copyrighted books. Chin did not rule on the copyright issue. His duty was to accept or reject the settlement based on the rules of civil procedure. Google has too much momentum and much of its corporate reputation invested in this effort to downgrade the service so severely.
Another unlikely move would be for Google and the plaintiffs to appeal Chin’s ruling to the Second Circuit Court of Appeals, to which Chin has recently been confirmed to replace Supreme Court Justice Sonia Sotomayor. This would be a complicated and time-consuming process. It could be a few more years before we get a sense if Google may launch its huge bookstore. Given the simplicity and certainty of Chin’s ruling one of the biggest risks for all parties involved would be waiting a year or two just to have to go back to the place they are today: trying to make the system legal.
If those negotiations fail, then we might have the first landmark copyright trial of the new decade, inviting radical changes in our information economy. Google would revive its risky fair use defense. Google’s success in court would depend on the courts agreeing that Google should be able to impose the copyright norms of the Web, where search engines presume a license to copy everything not explicitly marked to keep them away, onto the real world, where copyright by default excludes most copying without an explicit license. Google Books is unlikely to generate enough revenue itself in the short term to justify the cost of the fight, the risk to itself, and the risk to the essential concept of fair use.
Gumption needed for such a collection
Regardless of which of the above models the parties choose, it’s clear that neither Google nor anyone else will have the gumption to build the sort of global digital book collections we might dream about. There would always be holes in the collection or severe limitations on use unless we change the very laws that impede such projects in the first place.
Despite the fact that Google has aligned itself with President Barack Obama quite publicly and thus has far fewer fans and friends on Capitol Hill, the legislature is the only proper avenue to reform. Fair use is not designed to create copyright policy by judicial fiat. And a class-action settlement is the worst possible way to make policy. We can’t wish away the Constitution and law just because the politics are inconvenient.
Push for 'orphan works' legislation
That leads us to the most fruitful response for Google and the public. If Google and we truly desire a comprehensive and accessible collection of online books we will need to address copyright the right way — through legislation.
Specifically, we should push for what's known as "orphan works" legislation to give cover to those who make good faith efforts to find long-lost copyright holders, fail, and use the works anyway. This would not only help Google confidently continue scanning work. It would help libraries that want to do the same. And it would help historians and journalists who often get told by their publishers that they can’t use a quote or image because they can’t locate the copyright holder.
Second, we should consider flipping copyright from a default "all-rights-reserved" system to an opt-in system in which copyright holders must act to exclude their works from such large, online projects. This would make the whole copyright system more sane and workable. Big companies like Disney would still have incentives to protect their older work via copyright. But an author who doesn’t foresee or even desire a return on a book of poetry from 1972 could merely let the copyright lapse, freeing the work for others to use confidently and creatively.
Both of these changes would be controversial and complex. They would take years to achieve. And they would demand serious political campaigns to make them happen.
But grownups need not fear politics nor abandon patience. We must stop wishing for the big, rich company in the clouds to give us what we want. If we really desire grand projects like this from libraries, not-for-profits, and firms like Google, we should push for legislative changes to make them possible and legal. Short of that we are just cheating.
Siva Vaidhyanathan is a professor of Media Studies and Law at the University of Virginia and author of "The Googlization of Everything and Why We Should Worry" (University of California Press, 2011).