In Google Book Search Settlement, Readers Lose

The biggest development in the digital media world this week, by far, was the settlement of a pair of class-action copyright-infringement lawsuits brought against Google in 2005 by the Authors Guild, the Association of American Publishers, and several publishing houses. The compromise agreement, which was announced October 28 and now awaits approval by the federal courts, could eventually result in improved access to books, especially the millions of books that are no longer in print but are still covered by U.S. copyrights. It promises to free Google to move forward with its ambitious library digitization effort, which will put a vast collection of literature at the fingertips of students, researchers, and at least a few public library patrons. It should also placate the Chicken Littles in the publishing industry, who have spent years using every available means, including the Google lawsuit itself, to obstruct the sharing of knowledge enabled by the digital revolution.

But for readers—the group whose interests are closest to my own heart, and the only major class of stakeholders in the lawsuit whose interests weren’t being protected by a team of well-paid attorneys—the Book Search settlement contains some major disappointments. I should emphasize that I am not a lawyer, and I have only spent a few hours studying the settlement agreement. (It’s 323 pages long, which may explain why it took the parties more than two years to negotiate a solution.) But I’m saddened by the gap between the level of open access to literature that was considered possible when Google first launched its project to digitize millions of library books and what we’re probably going to get as a result of this agreement.

Specifically, the settlement seems to put an end to hopes that the Google Library Project would result in widespread free or low-cost electronic access to books that are out of print but have not yet passed into the public domain. These books—and there are millions of them—are in a painful state of limbo. They’re deemed commercially non-viable by their original publishers, so you can’t find them in most bookstores. Yet no one else can republish them without getting permission from the original copyright holders or their heirs or assignees—and for many so-called “orphan works,” these rightsholders can’t even be identified or located. So the only way to read one of these books is to find a copy at a used bookseller, or figure out which public or academic library owns a copy, and then physically travel there.

Google Book Search screen shotThe hope was that Google—consistent with its stated mission to “organize the world’s information and make it universally accessible and useful”—would simplify access to these out-of-print but still-presumptively-copyrighted books by sharing their full text over the Internet at little or no cost to readers, the same way it does with the public-domain books it has digitized. (Under U.S. law, the copyright on all works published before January 1, 1923, has irrevocably expired, and Google lets readers peruse and download these books for free. If you click here, for example, you can read my favorite novel of all time, E.M. Forster’s 1910 masterpiece Howards End.)

If Google had chosen to take the lawsuit to trial and prevailed, it might have been at liberty to do this, monetizing the practice (just as it monetizes all of its other services) through keyword-based advertising. Such a service would have been a great boon to readers everywhere. Indeed, when I interviewed a bunch of librarians about the Google initiative back in 2005, before the lawsuit, most of them were ecstatic: they’d been waiting for years for someone to come along and help them put their collections online. I bet Google could even have charged a little something for the service—after all, nobody else is trying to scan so many library books (7 million of them so far).

Alas, the nation’s authors and publishers organized a campaign to stop Google. Letting avarice run roughshod over common sense and the common good, the plaintiffs in Authors Guild et al. v. Google and McGraw Hill et al. v. Google argued that the very act of scanning an in-copyright book without the rightsholder’s permission is an egregious copyright violation. Even the short snippets of text that Google Book Search serves up among its search results were too much for these groups to stomach. (This despite the fact that the courts long ago ratified the inclusion of snippets in general Web search results as an example of “fair use” under copyright law.)

It quickly became clear that the plaintiffs in the lawsuits would sooner see out-of-print books remain in limbo forever than sacrifice one penny of potential profit to Google. No matter that these authors and publishers weren’t even marketing the books Google was scanning: if the rightsholders themselves couldn’t figure out how to make money on their out-of-print titles, no upstart search-gizmo company was going to, either.

It may surprise you that, as a writer, I’m on Google’s side in this dispute. But my point of view is that decent writers can always find ways to get paid for their work. They shouldn’t have to leech off the people who … Next Page »

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Wade Roush is a contributing editor at Xconomy. Follow @wroush

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