Judgment Day for the Google Book Pact

By Peter Osnos

Google, the Authors Guild, and the Association of American Publishers (in unlikely fraternity) have bowed to the very large number of petitioners who oppose their agreement that would profoundly affect the digital future of books. A hearing  long scheduled for October 7, before District Court Judge Denny Chin in New York is now expected to be postponed while all concerned consider objections to the accord  reached a year ago that gave Google vast rights to scan books and devised a system for paying authors and publishers for the right to do so. The pact--actually the settlement of a suit filed by the authors and publishers to stop Google from what they saw as uncontrolled digitizing of their work would be a fundamental step in the world of letters' adjustment to all the new ways literature and information are distributed.

At its core, the meaning of the agreement is that Google, the preeminent repository of digitized data and the foremost organizer of access to it, has acknowledged the obligation to compensate providers of content for use of their material in digital forms. The pell-mell scanning of millions of books from libraries and other sources represented an overwhelming threat to the printed word; comparable to what happened when music lost its moorings as unauthorized file sharing replaced royalties and sales. As the news universe discovered to its profound chagrin, once the concept of free use of content is established, it is damnably hard to reverse course. The Google settlement provides payment now and procedures for the future that assure the rights of those who create material to benefit from the use of it. Bravo to that.

But the accord also--in the view of its critics, led by the Justice Department--gives Google far too much of a role in determining the digital fate of an enormous trove of books; in effect, an immediate virtual monopoly and too much of an advantage going forward. In the year since the agreement was announced, the image of Google as the happy face of all matters digital has turned into something less appealing: a dominant corporate enterprise that has used its collective brilliance in technology and marketing to suppress competition while it prospers as others do not.

Justice, reflecting a tougher stance on anti-trust issues in the Obama administration, has initiated reviews of Google's activities on several fronts. Last week, the department submitted to Judge Chin its findings, which reflect its own negotiations with Google and the other signatories to the pact intended to make the agreement more broadly acceptable. On Tuesday afternoon, the parties in the settlement asked the court to postpone the hearing because, they said, the deal will have to be amended. Over time, Google had already made a number of concessions that provide privacy protections to users, access to digitized works by competitors such as Amazon, and accommodating differences between European and American copyright practices. Given Justice's continuing opposition, the signatories clearly decided they needed to do more. In any case, the most determined opponents to the agreement are adamant that it should be rejected outright.

A brief filed by Microsoft asserts that the pact would "constitute an unprecedented misuse of the judicial system" by preempting Congress' authority to set the terms for copyright, a position shared by the U.S. Register of Copyrights Marybeth Peters in testimony to a House committee earlier this month. The argument is that, by digitizing millions of "orphan works"--books whose authors no longer exercise their ownership rights--Google would be securing effective ownership of them. The problem is that Congress apparently has been unable to figure out how to deal with this issue itself. "At this point we don't have a role to play," observed Zoe Lofgren (D), the representative from Silicon Valley, adding that the agreement is "the private sector achieving what we failed to achieve" in legislation.

Taken as a whole, the objections come down to a belief that no corporation should be able to shape as decisively as Google would in this agreement the way information will be managed. There are parallels in the old AT&T's long-term control of telephone service and even, ironically, given its eloquent arguments against the book deal, Microsoft's supremacy in operating systems. And, as with any accord intended to accommodate the interests of all--think health care, for example--finding a perfect balance is very hard. Whatever Judge Chin eventually decides, someone likely will appeal if they, as a party to the case, have the standing to do so. Meanwhile, technology will continue to evolve. The worst outcome would be outright rejection of a pact that took two years to hammer out, has been before the court for another year, and, whatever its defects, makes what to me is the most important point: books have value in all the ways the term can be measured and that value must be recognized and rewarded in the ways books are disseminated.

If I may be permitted to end with a plug: Robert Darnton, the distinguished historian who is now the librarian of all Harvard's collections, is about to publish with PublicAffairs, The Case For Books: Past, Present, and Future, a collection of his writing that includes some cautionary reflections on the Google deal. I hope Judge Chin gets a copy and deploys his skills to affirm what is best in the pact, amends what may be its excesses, and gets the case resolved as quickly as possible.

This article available online at:

http://www.theatlantic.com/entertainment/archive/2009/09/judgment-day-for-the-google-book-pact/26994/