Digging Books The Digital Way

Google’s efforts to run the world’s largest digital library have hit a roadblock, but the ultimate outcome of this legal battle has serious implications for future access to book content.

A New York federal district court rejected a deal between Google, the word’s largest search engine, and lawyers for authors and publishers that would have settled a class-action suit brought against Google Books by the Authors Guild, a publishing industry trade group.

“While the digitalization of books and the creation of a universal digital library would benefit many, the (settlement) would simply go too far,’’ a court document explains.

“It would permit this class action – which was brought against defendant Google Inc. to challenge its scanning of books and display of 'snippets' for online searching – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners.”

The court added the $125 million settlement “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 those presented in the case.”

WMB appreciates monopoly concerns and authorship rights. But let’s face facts: This legal battle is more about money than access to out-of-print works. If somebody wants to compete with Google in its digitalizing of books, the marketplace should handle it, not the courts.

Secret Price Deals?

Google, under the settlement, would have received the right to display excerpts of out-of-print books, even if they are not in the public domain or authorized by publishers to appear in Google Books, which has digitalized over 12 million books.

When the settlement was initially announced in mid-2009, opposition flooded in from lawyers on behalf of Microsoft, the Electronic Frontier Foundation, and a coalition called the Open Book Alliance which decried it as anticompetitive.

“Google and the plaintiff publishers secretly negotiated for 29 months to produce a horizontal price fixing combination, effected and reinforced by a digital book distribution monopoly,’’ a lawyer for the Open Book Alliance said at the time.

“Their guile has cleared much of the field in digital book distribution, shielding Google from meaningful competition.”

The rejected settlement was revised, primarily to deal with objections coming from the European Union, but concerns remained that it would give Google too much power over out-of-print book titles.

The Authors Guild, which filed the class action suit in 2005, says it chose to settle rather than head for a court battle because it didn't want to repeat the well-publicized mistakes the music industry made while policing digital piracy.

The guild claimed Google was scanning books still under copyright protection.

“We believe this agreement has the potential to open up access to millions of books that are currently hard to find in the U.S. today,” says Google managing counsel Hilary Ware. “Regardless of the outcome, we'll continue to work to make more of the world's books discoverable online through Google Books and Google eBooks.”

The Bigger Issue

WMB agrees with Ware that the bigger issue in this battle is public access, with due compensation to the authors and their descendants.

If some book remains out of print and not digitalized online, the content stays unavailable. Nobody gains.

Google’s book efforts allow researchers, genealogists, and the public at large to rediscover printed works that otherwise would be lost to the ages. Some publishers of rare books or out-of-print books do so today only on demand and at a price that may be unaffordable.

Instead of condemning Google, perhaps its competitors should develop their own business model for digitalizing books. Google does not hold all the cards when it comes to ideas and free enterprise.

WMB suspects some of the competition (Microsoft, for example) is just sorry it didn’t beat Google to the punch in book digitalization. Of course, Microsoft has no monopoly!

Ken Cocuzzo

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