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A Judge Defends Property Against Google-ization

As an author, I own the copyright to this commentary. Google, with my knowledge and approval, will show you an excerpt, but will send you to my company’s website (or an authorized republisher) if you want to read the whole thing.

What Google cannot do is take this work and sell it without my permission, even if Google, or I, or a publisher, were to assemble the past 21 months’ commentaries into a book. The copyright to such a book would belong to me unless I assigned that right to a publisher.

It isn’t a particularly complicated system, and it has worked pretty well for a long time. So when Google and two groups claiming to represent authors and publishers tried to do an end-run around it, a federal judge rightly blocked their path.

Last week, Judge Denny Chin of the U.S. District Court in Manhattan rejected a settlement that Google reached in 2009 with the Authors Guild and the Association of American Publishers in a class-action copyright infringement suit. Google could profit from any copyrighted works it could get its hands on, the parties decided, as long as they all got a share of the pie.

But Chin found that the settlement failed the test of being “fair, adequate and reasonable” in protecting the interests of the copyright holders who were its supposed beneficiaries. Chin’s reasoning is largely in line with the objections that I raised when the settlement was first announced.

The plaintiffs originally sued to stop Google from scanning copyrighted books in order to display short quotations in response to search queries. While the entire books were copied into Google’s database, users could see only brief pieces at a time. Instead of defending the practice as “fair use,” or agreeing to stop the scanning, Google worked out a complex deal that not only allowed it to continue scanning, but also to sell access to full-text versions of books. Because the Authors Guild and the Association of American Publishers defined the “class” they represented as all those holding U.S. copyright interests in books or parts of books, the deal would have granted Google broad access to copyrights held by people with no direct involvement in the suit.

Under the agreement, Google would have had to obtain explicit permission to sell the full text of any “commercially available” books. But, for out-of-print books, it would have been allowed to assume the copyright holders’ permission and their assent to a default revenue-splitting arrangement. Google could have sold an unlimited number of books, without first contacting authors or publishers, setting its own pricing and keeping 30 percent of the revenue. Most troubling, the settlement would have allowed Google to sell access to so-called “orphan books,” those which are under copyright, but for which the copyright owners cannot be easily identified or located. In these cases, copyright holders would have received no share of the profits at all.

The settlement allowed copyright holders to “opt out,” but that would have done little good for those whom Google was never able to locate, since they would have had no idea that their books were being sold on the Internet, and that they needed to do something to claim their profits or to stop the sales. Chin observed in his opinion, “A copyright owner's right to exclude others from using his property is fundamental and beyond dispute... Under the [settlement], however, if copyright owners sit back and do nothing, they lose their rights.”

In case anyone should wonder why the Authors Guild and the Association of American Publishers were so eager to include complete strangers in this agreement, the settlement also required Google to pay $45 million to copyright holders of books it scanned before Jan. 5, 2009. This money would have been available only to those who registered “a valid claim on or before the agreed-upon deadline.” If the percentage of class members who filed claims was small, the payout for those who did, including the named plaintiffs, would have been substantial.

In his opinion, Chin noted that the settlement, far from punishing Google for violating copyrights in its original scanning, instead seemed to reward the company for its misconduct. He explained, “The [settlement] would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works. And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions.”

After noting repeatedly that around 6,800 people opted out of the settlement, Chin concluded that it is not reasonable to assume that everyone who holds a copyright wants to grant Google the rights to sell their work. He wrote:

While the named plaintiffs and Google would argue that these authors can simply opt out, the comments [from those opting out of the settlement] underscore certain points. First, many authors of unclaimed works undoubtedly share similar concerns. Second, it is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission. Third, there are likely to be many authors—including those whose works will not be scanned by Google until some years in the future—who will simply not know to come forward.

Chin suggested that Google can go ahead and create a full-text book database, but that it must wait to receive affirmative permission from copyright holders before seizing their property. This could be done through a broad settlement, he implied, but only if class members were required to opt in rather than out. Meanwhile, the judge said, it is up to Congress, not Google, to review copyright laws regarding orphaned works and to balance individual property rights with the public’s interest in access to ideas and knowledge.

Members of the Authors Guild may write about copyright law, publishers may print those opinions, and Google may archive them; but none of these groups can rewrite the laws themselves — no matter how much they think it would benefit the world. Or their checkbooks.

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