Why the Long Lost Google Book Pact Still Matters

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It is now well over two years since the Authors Guild and the Association of American Book Publishers reached a $125 million settlement of lawsuits against Google to establish a registry and royalty system that would monitor the digital distribution of books and other material protected by copyright. Predictably, for so complex an accord, there were critics, including the Justice Department and the agreement was resubmitted to Judge Denny Chin, then of the Federal District Court in New York who held a hearing on the pact last February. The judge can either accept or reject the settlement, but he cannot amend it. So far, he has done neither. In the meantime, Chin was promoted to the U.S. Second Circuit Court of Appeals, but took the case with him. His office refuses to say when an opinion will be ready.

Given the pace of business activity, the case may well seem outdated. Google has continued to digitize books in the millions. It has also launched Google Editions, which offers eBooks for sale and supports retailers in their own eBook marketing initiatives. Last week, in a major management shake-up, Eric Schmidt announced he was stepping down as Google's CEO. But nonetheless, the core issues in the dispute -- managing the distribution of eBooks by libraries and the dominance of Google as the ultimate repository of every book ever published -- remain unresolved. If Chin approves the settlement, it is virtually certain that advocacy groups such as the Open Book Alliance and Google's competitors for digital clout will appeal. If he rejects the settlement, authors and publishers will confront the issue they faced at the outset: protecting their rights against the unrestricted access that libraries, in particular, favor (after all, distribution to all comers is the role of libraries). Publishers and the Authors Guild concede that appealing a rejection would be very difficult, given the cost of litigation and the long-shot odds that Chin would be overruled.

If you've read this far, let me reward you with a judgment, lacking, of course the authority or prodigious consideration of Judge Chin's decision. Whatever the outcome, the original settlement and its revisions remain a landmark in the dizzying transformation of information from the traditional means of delivery of printed material to today's increasingly digital options. Why? Because Google originally argued that it had the right, which it declared was a public service, to digitize everything without regard to paying the content creators of copyrighted material. Once Google conceded that was not the case in the 2008 agreement, that particular contention was resolved.

In certain respects, however, technology and commerce have overtaken the original dispute. Digitized books can be programmed so that they cannot be copied or printed more than once, which limits the notion of a free-for-all in which authors and publishers lose control of the material. Many books in the public domain (the vast majority of works that have been digitized) are increasingly available from a variety of sources, which reduces Google's omnipotence. Given the extraordinary growth in the use of eBook reading devices (which were barely a factor when the lawsuits against Google were originally filed), the interests of authors and publishers have shifted to getting a fair share of revenues rather than the prospect of receiving no revenues at all.

For all these changes though, there are still a number of major issues to be played out, and having a legal accord in place that provides guidelines for dealing with them would be a considerable asset.

  • The unauthorized copying of books -- piracy -- is a continuing problem, although it doesn't seem to reach the levels that undermined the music business and still challenge the movie industry, especially in places like China.
  • Books that remain under copyright but are no longer available in print should be widely accessible as eBooks, and their authors should receive royalties for their use; this is a major objective of the agreement.
  • Google, Amazon, Apple, Microsoft, and other technology companies have become increasingly powerful in the commercial arena, and they have used their leverage to set the terms of distribution in ways that always benefit their interests. Content creators and consumers need to remain constantly alert, resisting the corporate bullying that accompanies success.
  • Still unsettled are the revenue split between authors and digital distributors such as Kindle and iBooks. There has been considerable progress on that score, but the Authors Guild, in particular, continues to be concerned that the lower prices of digital books on e-readers will mean less money to writers, even if publishers are no longer paying for paper, shipping, and reserving for returns of unsold inventory.
  • Finally, there is the role of libraries. Robert Darnton, the uber-librarian of Harvard and perhaps the country's leading specialist in the history of books, caused a stir last fall when he called for the creation of a National Digital Library. "Simple as it sounds," he wrote, " the question is extraordinarily complex... the technological difficulties of designing it, the legal obstacles to getting it off the ground, the financial costs on constructing and maintaining it, and the political problems of mobilizing support for it." Nonetheless, Darnton urges consideration of the concept of connecting all digital material into a single resource. A vast, university-based library would be a nonprofit alternative to the proposed Google-run universe, which Darnton has always argued would inevitably succumb to the temptations of business profit. My quick check with authors groups and publishers confirms Darnton's sense that achieving his vision, for all its virtues, would make the Google book settlement look easy.

Whatever ultimately happens in Authors Guild et al.v. Google, the future of digital publishing is a dynamic process that no one, not even Judge Chin, who has been studying the issues in briefs and arguments since 2008, can really forecast. But it would certainly be helpful to know what the learned judge thinks, once he has made up his mind.

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Peter Osnos is a contributing writer for The Atlantic. He is the founder and editor at large of PublicAffairs books and a media fellow at the Century Foundation.

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