DOJ does the right thing by refusing Google Books deal

Google's 'opt out' approach remains the obstacle, as well it should be.

In a surprise blow to Google's massive efforts to corner the fledgling digital books market, the DOJ has given the thumbs-down to Google's settlement with the Author's Guild and Association of American Publishers. I, for one, couldn't be more delighted.

Like many other bibliophiles (such as librarians and academics), and a two-time book author myself, I have always opposed Google's approach to the digital books market, even with the negotiated settlement the company created with the Author's Guild and the Association of American Publishers (AAP). I was for many years, a card-carrying member of the Author's Guild.

To offer a simplistic (and, admittedly, somewhat biased) synopsis of the situation Google at first had planned to scan millions of copyrighted books without obtaining copyright permissions and make that material searchable for free. For the most part, Google was planning on making only small sections of copyrighted material searchable, which it argued fell under Fair Use.

It wanted to make more information available to more people -- indeed, in those days (2005), Google had a mission of putting everything on the Web. It sounded glorious -- but there's this tiny little fact that it flew in the face of the intention of copyright law. There's also this other tiny little fact -- Google isn't some kind of giant philanthropic effort, no matter how it spins its press releases and blog posts. It is a for-profit, publicly traded company whose mission is to sell Internet advertising and other stuff, like enterprise search products and, now, books. You can't just systematically take massive amounts of copyrighted material and use it to turn a profit for yourself.

The AG and AAP sued, and Google negotiated a $125 million settlement that would meant authors were automatically opted in, but could opt out of Google's digitizing effort, and they would get paid for books sold. If an author didn't opt out -- or couldn't, as is the case for orphaned books, then Google decided it would scan the book anyway, without explicit permission. In essence, Google would wind up with rights over these orphaned books simply because it scanned them without permission.

The details are more complex and this article offers a good synopsis. In brief, Google made a lot of concessions over which books to scan, how much to make searchable, how much to pay authors, what to do about finding authors. It also gave some concessions to ensure that, just because Google has boatloads of cash to throw at any project it wants, it can't artificially control prices on books by selling them at a loss and driving competitors (like Amazon) out of business. That tactic is why we have antitrust laws.

It all sounds good until you realize ... Google still had it backwards. Digitized or not, Google is still nothing more than a retailer of the books. It shouldn't be granted any rights to anything that requires copyright holders to "opt out." Can you imagine how this would work on other property? What if some entity decided it wanted to sell more real estate and it listed people's houses for sale, telling them that if they didn't want to their house to be featured on their site, and potentially sold, they could opt out of the program?

Indeed, this is what, ultimately, the DOJ objected to. The DOJ noted that Google was using a class-action methodology to create a business model. But alas, class action status is for protection of rights, to be deliberated by a judge in a court room.

The DOJ said:

"Although the United States believes the parties have approached this effort in good faith and the amended settlement agreement is more circumscribed in its sweep than the original proposed settlement, the amended settlement agreement suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation."

In the fall, Schmidt whined about how hard it has been for Google to get its way in the matter. He told Search Engine Land that he wants critics of the deal to stop their complaining and come up with a better way.

“I'm open to a better solution. You will recall, we had our solution, and we were sued over it. And we then had a-god-knows-how-many years of negotiations with 27 parties, and we’ve actually produced a deal,” Schmidt said, when I spoke to him yesterday. Google was sued for scanning books that were in copyright without permission of the copyright holders. Only short summaries of a few sentences in length from within the books were shown, and Google’s view was that this was fair use. “We don’t think we should be sued in the first place. Again, I'm happy to be criticized. But the fact of the matter is we didn't sue them, they sued us,” Schmidt said.

The settlement doesn’t resolve the fair use question but instead sidesteps around it by granting Google far more rights than it has now. It's an expansive solution to what seemed a simple dispute over showing short summaries. For instance, Google will have the ability to display up to 20% of books that are in copyright — but out-of-print — to readers. Readers can also buy complete access to read those books online (but not download them). Authors and publishers have the right to completely remove their in copyright books from Google Book Search and have through 2011 to make that choice, if their books were already scanned."

But the solution doesn't need to be that hard. Booksellers have been doing it for hundreds of years -- gain permission to sell the book from the publisher (which owns the author's rights to sell the book) before you scan it.

The DOJ said it would work with Google to craft a more reasonable approach. According Wired:

"The Justice Department says it should be possible for Google to move forward so long as its agreement with authors is properly structured. The department pledges to help Google, authors, publishers and “other stakeholders” arrive at a solution that would give copyright holders the power to authorize Google and others to sell their works digitally, rather than forcing them to opt out if they don’t like Google’s plan (the deadline for which has already passed). It says this solution can be provided by either the market or legislation, which puts additional pressure on Google to work this out in the private sector without involving Congress."

Next stop, on Feb. 18, the U.S. District Court for the Southern District of New York will have a hearing on the proposed settlement agreement.

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