Google Books and the Complexity Of Digitalization
By: Christina M. Licursi
Law360
Recently, in a long-awaited decision, the Southern District of New York ruled against Google’s Amended Settlement Agreement (“ASA”) with the Author’s Guild and other publishers. This case had begun back in 2004 when Google had partnered with major university libraries in a plan to scan their library collections and make them available on the Internet. The Association of American Publishers (“AAP”) and the Authors Guild had sued Google for copyright infringement the following year.
Originally lodged as a relatively straightforward copyright claim by authors and publishers against Google, this case had evolved into a complicated settlement agreement between parties who were once adverse with the vision of a “roadmap” for a new digital book business. Ultimately, the question presented to the Court most recently was whether the terms set forth in the proposed ASA were “fair, adequate, and reasonable.” Judge Denny Chin decided that they were not, rejecting the agreement on copyright and antitrust grounds.
While Judge Chin acknowledged, "the digitization of books and the creation of a universal digital library would benefit many,” he also concluded that “the ASA would simply go too far.” He reasoned that "[the ASA] would permit this class action — which was brought against [Google] to challenge its scanning of books and display of "snippets" for on-line searching to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case."
The parties to the ASA, who have been negotiating for over five years, are clearly disappointed by the outcome, as the ruling essentially calls for both sides to return to the table to negotiate another settlement agreement. On a more fundamental level, the decision is disappointing to Google and other proponents of the ASA who believe that the Agreement had the potential to open access to millions of books that are hard to find or otherwise unavailable.
There were also a number of interested parties who had a stake in the outcome of the decision but who were not privy to the negotiations. These opponents of the ASA—who include authors, publishers, competitors, and various individuals—are pleased by the decision and welcome the chance for more discourse and for the parties to revisit negotiations. Notably, Amazon and Microsoft objected to the ASA on the grounds that it would violate copyright law and the Department of Justice objected to the ASA on the grounds that it would go beyond the scope of the law. Although they were not part of the underlying suit, Judge Chin seemed to heed their objections, as his decision addressed the scope of the agreement, the spirit of copyright law, and the apparent monopoly that the ASA would create for Google.
While the ASA had an opt-out provision, there were several concerns that seemed to underscore Judge Chin’s decision to overturn the settlement. "First, many authors of unclaimed works undoubtedly share similar concerns,” he declared. “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." In simplest terms, Judge Chin found the ASA unfair.
Judge Chin seemed particularly troubled by Google’s methodology and brazenness. Since 2004, Google has scanned more than 12 million books. This “wholesale, blatant copying, without first obtaining copyright permissions," seemed to undermine the earnest efforts of Google’s competitors. "While its competitors went through the 'painstaking' and 'costly' process of obtaining permissions before scanning copyrighted books,” he explained, “'Google by comparison took a shortcut by copying anything and everything regardless of copyright status," again emphasizing the fairness prong of his inquiry.
The decision, however, may not be as bleak for Google as it seems at first blush. Many of the objections could be mitigated if the proposed Google Books program was made an "opt-in" program rather than an “opt-out” agreement. The question now is whether Google will budge? Without some legislative change first, it is unlikely.
That’s why, after years of negotiations, in light of the outcome, Google will probably attempt to get Congress involved to change (i.e. modernize) some of the copyright laws. Congress should react by passing laws that allow for digitizing and indexing, giving everyone a right to copy orphan books, thereby addressing the concerns of the Justice Department and Google's competitors. After that, Google could propose a similar settlement, instead offering an opt-in to known rights holders.
While we all seem to agree that a digital library would be a welcome public benefit, the ASA was ultimately rejected because Google would end up at the epicenter of this “public benefit” and this seemed unfair, inadequate, and unreasonable to other interested stakeholders. Although the decision did not address the more complicated issues at the center of the initial lawsuits, namely, whether Google's digitization of books constitutes copyright infringement, the suit prompts us to think about the complexity of issues facing digitization efforts. The decision—and the underlying debate—underscores the fact that our copyright law is struggling to keep pace with the digital transition and that some legislative change in the copyright arena is necessary.
