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Google and the New Digital Future

On November 9, 2009, in the district court for the Southern District of New York, the Authors Guild and the Association of American Publishers were scheduled to file a settlement to resolve their suit against Google for alleged breach of copyright in its program to digitize millions of books from research libraries and to make them available, for a fee, online. Not comparable to the fall of the Berlin Wall, you might say. True, but for several months, all eyes in the world of books—authors, publishers, librarians, and a great many readers—were trained on the court and its judge, Denny Chin, because this seemingly small-scale squabble over copyright looked likely to determine the digital future for all of us.

Google has by now digitized some ten million books. On what terms will it make those texts available to readers? That is the question before Judge Chin. If he construes the case narrowly, according to precedents in class-action suits, he could conclude that none of the parties had been slighted. That decision would remove all obstacles to Google’s attempt to transform its digitizing of texts into the largest library and book-selling business the world has ever known. If Judge Chin were to take a broad view of the case, the settlement could be modified in ways that would protect the public against potential abuses of Google’s monopolistic power.

That Google’s enterprise (Google Book Search, or GBS) threatened to become an overweening monopoly became clear when the Department of Justice filed a memorandum with the court warning about the likelihood of a violation of antitrust legislation. More than four hundred other memorandums and amicus briefs also provided warnings about mounting opposition to GBS. In the face of this opposition, Google and the plaintiffs petitioned the court to delay a hearing that was scheduled for October 17 so that they could rework the settlement. Judge Chin set November 9 as the deadline when the new version of the settlement would be unveiled.

The great event turned out to be a dud, however. At the last minute, Google and the plaintiffs asked Judge Chin to grant another extension. He gave them four more days, so the witching hour finally took place not on November 9 but on a less auspicious date, Friday the 13th.

Why did the deadline look so monumental? The terms of the settlement will have a profound effect on the book industry for the foreseeable future. On the positive side, Google will make it possible for consumers to purchase access to millions of copyrighted books currently in print, and to read them on hand-held devices or computer screens, with payment going to authors and publishers as well as Google. Many millions more—books covered by copyright but out of print, at least seven million in all, including untold millions of “orphans” whose rightsholders have not been identified—will be available through subscriptions paid for by institutions such as universities. The database, along with books in the public domain that Google has already digitized, will constitute a gigantic digital library, and it will grow over time so that someday it could be larger than the Library of Congress (which now contains over 21 million catalogued books). By paying a moderate subscription fee, libraries, colleges, and educational institutions of all kinds could have instant access to a whole world of learning and literature.

But will the price be moderate? The negative arguments stress the danger that monopolies tend to charge monopoly prices. Equally important, they warn that Google’s dominance of access to books will reinforce its power over access to other kinds of information, raising concerns about privacy (Google may be able to aggregate data about your reading, e-mail, consumption, housing, travel, employment, and many other activities). The same dominance also raises questions about both competition (the class-action character of the suit could make it impossible for another entrepreneur to digitize orphan works, because only Google will be protected from litigation by rightsholders) and commitment to the public good. As a commercial enterprise, Google’s first duty is to provide a profit for its shareholders, and the settlement leaves no room for representation of libraries, readers, or the public in general.

An extensive argument about the pros and cons could turn Judge Chin’s courtroom into a forum where the full range of literary questions would be dramatized by debate. No courtroom drama took place on November 13, because nothing happened other than the filing of the revised settlement (call it GBS 2.0 to distinguish it from the original version of the settlement, GBS 1.0). But the filing was important in itself, because it marked the denouement of years of hard bargaining over who would control a large stretch of the digital landscape that is just now coming into view.

To be sure, GBS 2.0 will certainly be challenged by groups and individuals who claim they were not fairly represented in the classes of authors and publishers. The case may take years to work its way through the courts. Meanwhile, Google will go on digitizing; and as the legal situation evolves, it may devise further revisions of the settlement (GBS 3.0, GBS 4.0, etc.). The public will have to study all the new versions of the settlement in order to stay informed about the rules of the game while the game is being played. Who ultimately wins is not simply a matter of competition among potential entrepreneurs but an issue of enormous importance to everyone who cares about books, even though the public is reduced to the role of spectator.

As the first step toward a resolution, the filing on November 13 suggested just how far Google is willing to go in modifying the original settlement. Google’s spokesman hailed the revised version as providing all the benefits and none of the defects that one could expect. According to Dan Clancy, Google Books engineering director,

Google is still very excited about this agreement…. We look forward to continuing to work with rightsholders from around the world to fulfill our longstanding mission of increasing access to all the world’s books.

But the arguments in favor of the reworked settlement came from Google and the plaintiffs who will become its collaborators if their deal is approved. To get a sense of the counterarguments, one can survey the memorandums and amicus briefs that were filed with the court before November 9.* The protests that came from Europe are the most revealing. Although they concentrate on issues of special importance to foreigners—above all, the incompatibility of American class-action suits with protection for copyright holders who are not Americans—they show how the settlement was seen from a distant perspective.

The governments of France and Germany sent memorandums urging the court to reject the settlement “in its entirety” or at least insofar as it applied to their own citizens. Far from seeing any potential public good in it, they condemned it for creating an “unchecked, concentrated power” over the digitization of a vast amount of literature (this according to the French memorandum) and for doing so (according to the Germans) by a “commercially driven” agreement negotiated “in secrecy…behind closed doors by three interested parties, the Authors Guild, the Association of American Publishers and Google, Inc.”

In contrast to the commercial character of Google’s enterprise, both governments stressed the higher values represented by their national literatures. The French began their memorandum by invoking Pascal, Descartes, Molière, Racine, and other writers through Camus and Sartre, while the Germans summoned up the line that led from Goethe and Schiller to Heinrich Böll and Günter Grass. Each country cited the number of its Nobel Prize winners in literature (France sixteen, Germany twelve), and each buttressed its case by other evidence of high-mindedness. The Germans insisted on Gutenberg and his contribution to “the spread of science and culture.” The French cited the Declaration of the Rights of Man and of the Citizen from 1789 and the Universal Declaration of Human Rights of 1948 in order to uphold the principle of “free access to information” threatened by Google’s “de facto monopoly.”

It is an odd spectacle: foreign governments defending a European notion of culture against the capitalistic inroads of an American company, and submitting their case to Judge Denny Chin of the Southern District Court of New York. What Judge Chin, who grew up in Hell’s Kitchen in a family of poor Chinese immigrants (and won a scholarship to Princeton University) made of it all is difficult to say. He did not tip his hand on November 13, nor did he say when a hearing would take place.

In playing the cultural card, the French emphasized the unique character of the book, “a product unlike other products”—its power to capture creativity, to enrich civilization, and to promote diversity, which, they claimed, would be compromised by Google’s commitment to commercialization. The Germans spoke in the name of “the land of poets and thinkers,” but they laid most stress on the right of privacy, which, they argued, Google could threaten by keeping data on who reads what. Both governments then listed a series of subsidiary arguments, which were nearly the same, word for word—unsurprisingly, as they engaged the same legal counsel:

  1. The settlement gives Google a virtual monopoly over orphan works, even though it has no claim to their copyrights.

  2. Its opt-out provision, which means that authors will be deemed to have accepted the settlement unless they notify Google to the contrary, violates the rights inherent in authorship.

  3. It contains a most-favored- nation clause—i.e., a provision that prevents a potential competitor from obtaining better terms than Google in any new commercial uses of the digitized books. The terms of such future enterprises will be determined by a Books Rights Registry composed exclusively of representatives of the authors and publishers. The Registry will keep track of copyrights and cooperate with Google in setting prices.

  4. It gives Google the power to censor its database by excluding up to 15 percent of the digitized works.

  5. Its guidelines for pricing will promote Google’s commercial interests, not the good of the public, through the use of algorithms created by Google according to Google’s secret methods.

  6. It favors secrecy in general, hiding audit procedures, preventing the public from attending meetings in which Google and the Registry will discuss library matters, and even requiring Google, the authors, and publishers to destroy all documents relevant to their agreement on the settlement.

  1. *

    The texts of the documents can be consulted at dockets.justia.com/docket/court-nysdce/case_no-1:2005cv08136/case_id-273913.

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