Google’s Loss: The Public’s Gain

Musée du Louvre, Paris
Jean-Baptiste-Camille Corot: La Madeleine lisant, circa 1854; from the Oskar Reinhart Collection’s exhibition ‘The Secret Cabinet: A Reader in Context,’ reviewed by Willibald Sauerländer in this issue

It is too early to do a postmortem on Google’s attempt to digitize and sell millions of books, despite the decision by Judge Denny Chin on March 23 to reject the agreement that seemed to make Google’s project possible. Google Book Search may rise from the ashes, reincarnated in some new settlement with the authors and publishers who had taken Google to court for alleged infringement of their copyrights. But this is a good time to take a backward look at the ground covered by Google since it first set out to provide access to all the books in the world. What went wrong?

In the forty-eight-page opinion that accompanied his decision, Judge Chin indicated some of the wrong turns and paths not taken. His reasoning ran through each stage in the evolution of the enterprise:

• 2004: Google started digitizing books from research libraries and displaying snippets of them for online searches. You could find short excerpts from a book online but not the full text.

• 2005: The Authors Guild and the Association of American Publishers sued Google for violation of their copyrights.

• October 28, 2008: After arduous negotiations, Google and the plaintiffs filed a proposed settlement with the Southern Federal District Court of New York.

• November 13, 2009: In response to hundreds of objections filed with the court, Google and the plaintiffs submitted an Amended Settlement Agreement (ASA).

• February 18, 2010: Judge Chin conducted a fairness hearing at which more objections were raised.

• March 23, 2011: Judge Chin rejected the ASA.

What began as a project for online searching metamorphosed during those seven years into an attempt to create the largest library and book business ever imagined. Had Google kept to its original plan, it might have won its case by invoking the doctrine of fair use. To display a few sentences in the form of snippets could hardly be equated with reproducing so much text that Google was effectively appropriating the bulk of a book. The early version of Google Book Search did not amount to commercial competition with publishers, because Google provided its search service free of charge, although it linked its displays to advertisements.

Then the lawyers took over. For more than two years, the legal teams of Google and the plaintiffs wrangled over details of how their differences could be resolved by a partnership in a common commercial enterprise. (The lawyers’ fees for the various parties eventually came to $45 million.) The result, Google Book Search, had many positive aspects. Above all, it promised to provide millions of readers with access to millions of books. It also gave authors an opportunity to have their out-of-print works revived…

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