Google is running into the same old problems in its quest to digitize the world's books -- copyright law. New York federal Judge Denny Chin on Tuesday rejected the $125 million Google Books settlement the search giant agreed to pay authors and publishers.
Chin ruled that the agreement would "grant Google significant rights to exploit entire books without the permission of copyright owners" and 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 the case."
"Google's entire business model is to never ask permission, but to seek forgiveness if necessary," said John Simpson, director of Consumer Watchdog's Privacy Project. "Judge Chin has ruled simply that you can't take other people's property and use it without asking. This should send the message to the engineers at the Googleplex that the next time they want to use someone's intellectual property, they need to ask permission."
Back To the Drawing Board
The Association of American Publishers and the Authors Guild sued Google in 2005 over the project. After two years of bitter back-and-forthing, the groups inked a deal with Google that would allow the printed works to be digitized in exchange for the settlement. Google hasn't publicly commented on the defeat, but Chin had plenty to say in his ruling.
"The court reflected a number of the settlement opponents' concerns in his ruling. However, among them he focused on antitrust issues surrounding Google's potential control over the content of these digitized works. He also focused on the opt-out provision of the settlement," said Greg Sterling, principal analyst at Sterling Market Intelligence.
Sterling noted that in the conclusion, Chin again mentioned opt-out -- vs opt-in -- as the primary basis of his settlement rejection. As Sterling sees it, the judge would have been more favorably disposed toward the settlement had authors been given the opportunity to opt-in to the project rather than placing the burden on them to opt-out or their approval would be assumed.
"Chin left the door open for an alternative settlement proposal from the parties. However, the challenge with opt-in for Google is that it would likely mean that far fewer books would be included in the database as a practical matter," Sterling said. "There would also need to be ongoing outreach to writers to attract and confirm their participation. It would potentially open up further liability if books were wrongly included without prior explicit consent."
The Open Book Alliance (OBA), which includes Amazon.com, the American Society of Journalists and Authors, the Council of Literary Magazines and Presses, the Internet Archive, Microsoft, the National Writers Union, the New York Library Association, the Science Fiction and Fantasy Writers of America, Small Press Distribution, the Special Libraries Association, and Yahoo, applauded the ruling.
"The ruling ratifies the objections of a diverse cross-section of voices who stood up to Google and its partners -- from the Justice Department and state attorneys general to authors and independent publishers, consumer and privacy advocates, and members of the academic and library communities," said Gary Reback, counsel to the OBA. "We urge the Justice Department to remain vigilant and continue in its role as a leader in protecting consumers and competition from an entrenched monopoly in online search."