Let’s start with two givens. First, Google is an outstandingly innovative company. Millions of us use Google search, e-mail, maps and other applications on a daily, if not hourly, basis. Second, Google is no more above the law than any other company, no matter how much social benefit one of its projects would arguably bestow on society. Yet its proposed settlement of a copyright lawsuit initially brought by some authors and publishers goes far beyond what class-action settlements are supposed to achieve and is tantamount to private legislation.
Google has been scanning books from major research libraries, such as the University of Michigan, since 2004. The initial goal was to index the contents of books to provide snippets to users whose queries yielded Google Book Search (GBS) results. Google believed that its scanning of in-copyright books was fair use, because it wasn’t displaying substantial parts of book contents and because it facilitated access to them by linking to libraries or bookstores from which they could be obtained. (A fair use does not infringe copyright, insofar as it is done for a beneficial purpose and does not unreasonably harm the copyright owners’ interests.)
In fall 2005 the Authors Guild and five major book publishers sued Google, claiming that its book scanning was copyright infringement. Soon thereafter, Google began negotiating a settlement of this dispute with the guild and members of the Association of American Publishers. In October 2008 Google, the guild and the AAP collectively announced a settlement agreement they had devised on behalf of a class of all people who own a US copyright interest in one or more books, with the guild representing the author subclass and the AAP the publisher subclass. Because of US treaty obligations, the proposed settlement class includes all owners of copyright interests in all books in the world. Google has pledged $125 million to settle the lawsuit, $45.5 million of which will go to the lawyers who negotiated it. (The lawyers are getting $500,000 more than Google has set aside for payments to rights holders of all of the in-copyright books now in the GBS corpus.)
Members of the class had until September 4 to opt out, object, oppose or comment on the settlement. The court received more than 400 submissions about the settlement, the overwhelming majority of which expressed opposition, objections or concerns. Among the objectors were the governments of France and Germany, several states, and prominent authors such as Harold Bloom and Michael Chabon. Library associations and academic authors expressed concern about lack of user privacy and risks of price-gouging. Amazon.com, Microsoft, Yahoo! and the Justice Department asserted that the deal was anticompetitive and a misuse of the class-action process.
In late September the lawyers for the author and publisher subclasses asked the court for time to work on amendments to respond to the Justice Department’s concerns. A revised settlement is expected to be filed by November 9, and the lawyers have asked the judge to hold a hearing about whether to approve the settlement by the end of the year.
So what does the deal provide, and why are some opposed to it? The main feature of the proposed settlement agreement is the license it would give Google–and Google alone–to commercialize all in-copyright out-of-print books, in three ways: through the sale of ads next to search results that yield GBS responses, consumer purchase of individual books that will be available on Google servers, and institutional subscriptions to libraries and the like. Google would keep 37 percent of these revenues and would give the other 63 percent to a newly created Book Rights Registry, which would be responsible for finding rights holders and paying them for Google’s use of their books.