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A long-awaited decision by a federal judge could be a significant blow to Google's attempts to sell access to books it scanned from university libraries.
March 23, 2011

Google says that by scanning and enabling digital access to millions of books from research library collections, it will give students, researchers, and others unprecedented power to search and discover within digital archives.

But now that a federal appeals court judge has rejected a proposed settlement that took years of haggling with authors and publishers to formulate, the company has some searching of its own to do. Google will have to discover a different way to secure the rights to grant access to out-of-print “orphan works” before it can start licensing them for public consumption through its controversial Google Books project, Judge Denny Chin said in a decision handed down Tuesday.

A number of higher ed interests had sent letters to Chin weighing in on the proposed settlement, which would have established an independent Book Rights Registry to disburse profits from Google’s licensing of digital access to “orphan works” -- books for which there is no clear copyright holder. Orphans make up roughly a fifth of the 15 million books in Google’s digital archive.

Many in higher education voiced support for the settlement, including the University of Wisconsin at Madison, Abilene Christian University, the Association of Independent California Colleges and Universities, the United States Distance Learning Association, and the United States Student Association. Most cheered the possibility of broader and easier access to hard-to-get books. “While inter-library loan reduces the inequalities among libraries, there is a financial cost as well as a delay for scholars requesting the work, with no guarantee that an individual book will even be useful to their research,” Jeanine Varner, provost at Abilene Christian, wrote in a 2009 amicus brief. “Thus, the settlement is a significant change for the better by creating a means for us to offer immediate electronic access to crucial published resources.”

But in a 48-page decision light on references to libraries, students, and research, Judge Chin, of the U.S. Court of Appeals for the Second Circuit, appeared to find most persuasive among the academic petitioners Pamela Samuelson, a law professor at the University of California at Berkeley, who wrote a brief in early 2010 on behalf of 80 professors in objection to the proposed settlement.

Samuelson had argued that it would be inappropriate for Google and the publishers to profit from the use of orphaned scholarly works -- which she believes comprise a disproportionately large number of the orphans -- when the academics who wrote them probably intended that they be as freely accessible as possible. “Many academic authors … would prefer that orphan books be treated on an ‘open access’ or ‘free use’ basis rather than one where they would be controlled by one private entity,” Chin wrote in a footnote, citing Samuelson's friend of the court brief.

The judge also cited the Berkeley law professor in noting that when Google began scanning collections at large research libraries in 2004, it did not state any intent to sell access to those books later -- a purpose that would have set off copyright-infringement alarms if it had been made explicit. “The Google Book Search initiative envisioned in the [agreement] is not a library,” the judge wrote in another footnote, quoting Samuelson directly. “It is instead a complex and large-scale commercial enterprise in which Google -- and Google alone -- will obtain a license to sell millions of books for decades to come.”

Siva Vaidhyanathan, a media studies professor at the University of Virginia and a notable Google gadfly, said the company overplayed its hand by essentially trying to rewrite the rules governing the copying and distribution of book content through a class-action settlement. “Google clearly flew too close to the sun on this one,” he wrote in an e-mail. “…This is not what class-action suits and settlements are supposed to do.”

Vaidhyanathan said that Google now faces the choice of either continuing to fight for its interpretation of copyright law in the courts or scaling back its plans for a digital bookstore. “If Google decides to take the modest way out, it can still ask Congress to make the needed changes to copyright law that would let Google and other companies and libraries compete to provide the best information to the most people,” the media scholar says. “Congress should have been the place to start this in the first place.”

According to a flow chart released last March by the Association of College and Research Libraries -- satirically dubbed “GBS March Madness” for its resemblance to a tournament bracket and coincidence with last year’s NCAA basketball tournament -- the low road would be for Google to petition for a writ of certiorari and make its case to the Supreme Court.

If Google instead tries to rejigger the settlement agreement to Chin’s liking, it will be in a substantially weaker bargaining position given Tuesday's ruling, said Joseph Esposito, a consultant who advises scholarly publishers. Whereas the current form of the settlement required authors and publishers to actively “opt out” or else relinquish their rights to Google, the judge said in his decision Tuesday that he would prefer a settlement that stipulates that copyright holders retain their rights by default. “One imagines that the publishers will be more aggressive in renewed settlement discussions,” said Esposito.

Some in higher ed who had heralded the proposed settlement agreement said they were disappointed by Tuesday’s decision, which could mean many more months of litigation.

“Ultimately the balance between the rights of copyright owners and users has to be balanced -- but in my opinion the proposed settlement achieved that balance,” said Jonathan A. Brown, president of the Association of Independent California Colleges and Universities, who had written in support of the settlement in 2009, in an e-mail.

“I do feel disappointment with regard to the loss of access the [agreement] would have made possible,” said John P. Wilkin, an associate university librarian at the University of Michigan, which has been one of Google’s closest collaborators. “Here we should keep in mind the range of things [it] would have made possible, not only opening a vast collection to library users everywhere, but facilitating perhaps the broadest provision of services to users with print disabilities anyone ever conceived," Wilkin wrote in an e-mail. "These would have been game-changers not only for higher education but for constituencies that are largely neglected.”

But Esposito said that academics and students constitute only a small portion of the potential stakeholders in the Google Books case, and those who were disappointed by Tuesday’s decision would do well to be humble in their lamentations. “It is widely assumed that the digitization of so many books would have a significant positive benefit for higher education,” Esposito said in an e-mail. “I think that is just plain wrong. There is a reason books went out of print in the past, a reason that orphans are orphans. These are books of marginal value to higher education, as the historical lack of demand demonstrates.

“The higher education community flatters itself to think that the Google mass digitization project and the proposed settlement was about them,” he continued, “but the real object in this case from the beginning was the establishment of legal precedents for future disputes about copyright and the access to texts by machines, in part motivated by the prospect of the commercialization of data-mining techniques.”

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