Authors Guild v. Google Inc. : some questions on the ruling on the proposed settlement

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The Judgment in the settlement proposed in the Google Books Case has once again thrown unwanted light upon Google’s business ambitions. But does this mean that the judgement is a turning point in Google’s career and its internet growth strategy ? Certainly not! It is in fact, “a minor bump on the highway”. Not just for Google itself, but for internet users as well.

To understand the reasons for the above statement one needs to quote from the judgement of Judge Denny Chin of the U.S. New York District Court (S.D.N.Y.) itself:

“The benefits of Google’s book project are many. Books will become more accessible. Libraries, schools, researchers, and disadvantaged populations will gain access to far more books. Digitization will facilitate the conversion of books to Braille and audio formats, increasing access for individuals with disabilities. Authors and publishers will benefit as well, as new audiences will be generated and new sources of income created. Older books—particularly out-of-print books, many of which are falling apart in library stacks—will be given new life.” (Pg. 3)

Also, to quote from the Statement of Interest of the United States of America (The Justice Department) which it filed before the court regarding the settlement agreement:

“Widespread lawful electronic distribution and use of copyrighted works, including in-print, out-of-print, and so-called “orphan” works, holds vast promise. Breathing life into millions of works that are now effectively dormant, allowing users to search the text of millions of books at no cost, creating a rights registry, and enhancing the accessibility of such works for the disabled and others are all worthy objectives.” (Pg. 1)

Therefore, it’s quite obvious that provided the agreement between the Guilds and Google is a “fair” one, i.e., adequately encompasses within itself the interest of authors, there really isn’t much of a reason to complain.

But this raises another question: What exactly constitutes as “fair”? After all, there are many who write for the pleasure of writing rather than with the primary purpose of deriving monetary benefit out of their writings. There are many who write simply to help spread their name, who would gladly even pay a certain monetary sum provided it gets their name some exposure. Consequently, there are many who will gladly consent to allowing publication of their work by Google for no financial remuneration whatsoever. Obviously, this means that for many, there is no requirement of any “settlement” as was in dispute in the present case. However, Google has only itself to blame for not having taken advantage of such a scenario. Under the agreement, there were different opt in and opt out rules for different classes of books. What is plain cynicism is that the “opt-out” option applied only to out of print and ‘orphan’ books (Orphan books are those where the original authors lack any incentive to establish their copyright on their work). Therefore, effectively, any other book other than the above could not be allowed to withdraw once it accepts the agreement, and as is well known, writers do not like limitations imposed on them in any manner and prefer high freedom for their work. It is indeed surprising how Google always fails to understand the significance and effectiveness of its own ‘open network’ principle (the principle on which most Google programs are predominantly dependent on their success)

Also, another question which needs to be considered is the status of free websites on the internet under competition law. For example, there are websites which openly provide free content with full access to complete books for free, and they aren’t even illegal! Similarly, while websites like JSTOR and Hein online provide paid access to users to various journals on a variety of subjects, I can say with full confidence (and I am sure any other academic writer or researcher would also agree), rarely have I felt handicapped by not having access to these databases. SSRN and accessing the website of the journal itself can often help one find the required article. So, in many ways, Google is trying to do something which people have been doing for a long time. (In fact, the primary reason ‘findlaw.com’ shut shop was because ‘Google scholar’ was doing their job far more effectively due to its larger pool of resources.) Could these websites, under any circumstances, be considered as “anti-competitive” in the relevant market??

Final question: is this a classic example of the Schumpeterian Principle of destructive creation?? Has Google, at one point of time hailed as the brilliant new innovator of the millennium, now become the controller, obsessed with domination in all spheres of internet and intranet technology??

I hope to find answers, or hopefully some pointers in another post. Meanwhile, in case you’re interested in my previous post on Google’s antitrust woes, please click here.