Last week, U.S. District Judge Denny Chin voided a proposed settlement between Google, the Authors Guild, the Association of American Publishers and a large group of individual authors and publishers meant to allow the technology giant to scan entire libraries of books into a searchable online database. Although the outcome disappointed those parties as well as a number of library systems, including the University's, that have made their collections available to Google, Chin's decision was prudent given unresolved issues surrounding the settlement that pertain to anti-competitiveness and access to academic material.
The settlement in question stemmed from a lawsuit filed by the Authors Guild and the Association of American Publishers against Google in 2005. At issue was the Google Book Search initiative, a service through which rare and out-of-print books are being scanned into an online database for viewing and easy access. Although many of the books have existed long enough that they have entered the public domain, Google's service drew the ire of authors and publishers because it also includes previews of copyrighted works without the rights holders' approval.
The settlement Chin adjudicated would have addressed that conflict by establishing a Book Rights Registry that would have given copyright holders an opportunity to record claims to their rights. Moreover, it would have given those rights holders 63 percent of the revenue generated from Google Book Search. This aspect of the settlement was particularly important since Google's long-term goal for the initiative is to sell database subscriptions to universities and other institutions that would give them unrestricted access to in-copyright material. The company also hopes to engage in transactions with individual buyers who would be able to purchase downloads of specific works.
Such an approach could revolutionize the way individuals conduct research. By aggregating substantial amounts of material into a searchable collection, Google would create a more comprehensive and accessible alternative to traditional libraries and bookstores. The quantities of public domain material Google is in the process of scanning would be free for viewing by anyone with an Internet connection. Additionally, granting individuals the ability to instantaneously access in-copyright material upon payment of a fee would make the service more efficient than tracking down a published work in a local bookstore.
The fatal flaw with the settlement, however, was that it left open the possibility of Google assuming monopoly control of works whose rights holders are unknown. These so-called "orphan books" are in a state of copyright limbo that often is resolved only when an heir to the work's creator comes forth to claim his rights. To avoid the possibility of being sued by an heir after uploading such material to its database, Google included in the settlement a stipulation that it would be immune from any suit relating to orphan books. Unfortunately, this provision does not extend to other sellers, meaning they would be at a serious competitive disadvantage when seeking to compile a database of material. Competitors would be unable to include orphan books in their collections because of legal risks, leaving out a large swath of material published during the 20th century that only Google would have the ability to sell.
Thus, Chin should be commended for his decision to reject the settlement as it was written. Even though Google typically is viewed as a paragon of corporate responsibility - its unofficial motto is "Don't be evil" - there is no guarantee it will hold the rights to this collection of orphan books forever. Just as its rise decimated the formerly dominant web company Yahoo!, so too could another start-up eventually overtake Google and one day assume control of what would be the largest collection of published material ever assembled. If prices were to increase or access was to be restricted as a result of this, then it would cause a crisis for students and researchers. The best safeguard against such an occurrence is to ensure competition within the marketplace for digitized books, something that will require further collaboration by Google, publishers, authors and university libraries.
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