Friday, March 25, 2011

Opting Out of Opting Out:
The Latest Round in the Google Books Saga

There's a lot of long-running legal cases currently trickling through our judicial system. The recent health care law gets the most press, but there's also the possibility of an AT&T and T-Mobile merger, which would have to be approved by the federal government. 

Google Books isn't as politically volatile as health care, nor is it as sexy as smart phones and data networks. But the recent opinion delivered by district court judge Denny Chin is perhaps just as important in the long-term. Nominally, the ruling is about Google's desire to create an all-inclusive digital library. But the conversation also touches on the United States' arcane copyright law, the supposed "freedom" of information, and the implications of a commercial company pursuing a supposedly humanitarian project. 

The Background

Google Books is the pet project of company cofounder Larry Page. The project began almost a decade ago, as Google collaborated with academic libraries across the country to start scanning every book in their system. In recent years, Google has made the entire database of books available online; visitors can access any text that is no longer under copyright. Other books have preview chapters available, and still others (those books with whom Google has not reached an agreement with their publishers) only have snippets of text available - the maximum of what could be considered "fair use." 

This sounds like a pretty cool idea, and, in very Google-esque language, co-founder Sergey Brin describes their intention to preserve and make accessible "the world's collective knowledge and cultural heritage." Yet this is not necessarily a philanthropic enterprise. And, quite understandably, a lot of authors and publishers got a bit upset that Google was running around behind their backs and scanning a bunch of books without their permission. Even though Google did not make books under copyright available to the public, there was little doubt that they were hedging their bets that someday they could start providing access to, and thereby profiting off of, these books under copyright. 

But with the significant problems facing the publishing industry, and the promise of a big pile of money from digital sales, the Author's Guild reached a deal with Google last year, in which Google would pay a fine for copyright infringement in exchange for immunity from future litigation. Google would then work with the authors to make books available online so that someone, somewhere, might start making money off writing again. (I wrote about the Author's Guild settlement last year here). Not all authors were happy about this deal, and some of them, for a variety of reasons, decided to "opt-out" of the agreement.

The Elephant Not In The Room

The big question came from those books that were out-of-print, but still under copyright. Here, Google reserved the right to publish and make money off these works, unless their long-lost authors or their heirs emerged from the woodwork to collect their money or opt out of the agreement. Google went through all the motions, putting up websites in search of these authors, and setting aside an account for those heirs that might emerge in the future with their outstretched money-grubbing palms. 

If you're asking what right Google has to make money off these texts solely because their authors haven't been found, you're asking the same question that Judge Denny Chin asked. According to Chin, Google was basically publishing a bunch of copyrighted texts willy-nilly, and only offering to stop if someone specifically asked them to. (For what it's worth, Google has operated YouTube along similar lines, allowing all sorts of copyright infringement, unless there is a specific complaint). Chin did not buy the argument that Google had the right to violate copyright just because no one had showed up to argue otherwise, and declared the deal illegal.

To realize how silly Google's "opt-out" policy was, consider some nerdy college kid who checks a bunch of DVDs out of the library and copies them onto his computer, then starts streaming them online. Inevitably, the MPAA is going to bust his ass - can the college student make the case that he was creating a digital film library, and the film studios had not yet "opted-out" of this project? This scenario is hyperbolic, but only just - Google basically scanned a bunch of books they had no rights to, made plans to make them available to the general public, and only then complained that it wasn't their fault that no one had told them to stop.

Yet Judge Chin left the door open; he is not averse to the idea of a massive digital library. Chin suggested that an "opt-in" system might pass legal muster; authors of these out-of-print books would have specifically affirm their desire to enter the Google Books project, rather than specifically choose not to participate. 

So What's Next?

All of this puts Google back where they started - an opt-in system sounds good, in theory, but there will still be a large number of books whose authors (or their heirs) will not even be aware of the settlement. The complexities of thousands of authors opting-in to the project also makes this possibility a logistical nightmare. Google is sitting on the largest collection of printed knowledge in the world, but now they have to ask each author politely, one at a time, if they're allowed to sell these texts online. 

I'm divided on the issue. On the one hand, I completely agree with Chin that letting a corporation have sole control over these texts seems rather absurd - who is Google to control access to these texts, simply because they positioned themselves to be at the right place at the right time? Google has done nothing but scan a bunch of books, and now they're asking for the right to make a profit off of them. 

But on the other hand, Google Books seems like the lesser of two evils. The other option is the legal nightmare of copyright law we currently have - a convoluted system that only gets worse once you start considering the rights of foreign authors and their relationship with Google Books. And as much as Denny Chin and everyone else in the blogosphere can huff and puff and ask for a non-profit philanthropic charity to start a worldwide library project, no one is really stepping up. Google is the only company with the ambition and means to pursue a project on this massive scale. Wouldn't we rather have these books available from Google then lost forever?

In his ruling, Chin suggested that "the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court." Here, he means that he sympathizes with the idea of a worldwide library, but the problem lies not with the settlement between Google and the Authors Guild, but with copyright law in the first place. I've complained about copyright law before on this site, and the major thing standing in the way of Google is the ridiculous tenure that is granted to a work (currently between 70 and 125 years after publication, depending). Chin seems to indicate that he wishes Congress would alter the currently ridiculous copyright period to allow a project like Google Books to be more feasible. 

Sadly, Congress has other issues on its plate right now, and copyright law is probably low on the list of what brings voters to the polls. It will be interesting to see if Google tries to revise the agreement or simply leave the project for dead. Barring the creation of GoogleLobbyist, I don't foresee any major copyright shift at any time in the future, which means the bulk of the texts in Google Books will remain unavailable to the public for the time being.