ON Tuesday, Denny Chin, a federal judge in Manhattan, rejected the settlement between Google, which aims to digitize every book ever published, and a group of authors and publishers who had sued the company for copyright infringement. This decision is a victory for the public good, preventing one company from monopolizing access to our common cultural heritage.
Nonetheless, we should not abandon Google’s dream of making all the books in the world available to everyone. Instead, we should build a digital public library, which would provide these digital copies free of charge to readers. Yes, many problems — legal, financial, technological, political — stand in the way. All can be solved.
Let’s consider the legal questions raised by the rejected settlement. Beginning in 2005, Google’s book project made the contents of millions of titles searchable online, leading the Authors Guild and the Association of American Publishers to claim that the snippets made available to readers violated their copyrights. Google could have defended its actions as fair use, but the company chose instead to negotiate a deal.
The result was an extremely long and complicated document known as the Amended Settlement Agreement that simply divided up the pie. Google would sell access to its digitized database, and it would share the profits with the plaintiffs, who would now become its partners. The company would take 37 percent; the authors would get 63 percent. That solution amounted to changing copyright by means of a private lawsuit, and it gave Google legal protection that would be denied to its competitors. This was what Judge Chin found most objectionable.
In court hearings in February 2010, several people argued that the Authors Guild, which has 8,000 members, did not represent them or the many writers who had published books during the last decades. Some said they preferred to make their works available under different conditions; some even wanted to make their work available free of charge. Yet the settlement set terms for all authors, unless they specifically notified Google that they were opting out.
In other words, the settlement didn’t do what settlements are supposed to do, like correct an alleged infringement of copyright, or provide damages for past incidents; instead it seemed to determine the way the digital world of books would evolve in the future.
Judge Chin addressed that issue by concentrating on the question of orphan books — that is, copyrighted books whose rightsholders have not been identified. The settlement gives Google the exclusive right to digitize and sell access to those books without being subject to suits for infringement of copyright. According to Judge Chin, that provision would give Google “a de facto monopoly over unclaimed works,” raising serious antitrust concerns.
Judge Chin invited Google and the litigants to rewrite the settlement yet again, perhaps by changing its opt-out to opt-in provisions. But Google might well refuse to change its basic commercial strategy. That’s why what we really need is a noncommercial option: a digital public library.