A federal judge has thwarted Google’s ambitions to create a digital library, a decision that goes way beyond the looming interior design problems and psychological ramifications of future generations living with empty bookshelves. Google’s failed plan to digitize millions of published and unclaimed “orphan” books have been hailed as a victory for copyright lawyers, Internet archivists, Microsoft, Yahoo and – least surprisingly of all – Amazon. But is it also a victory for consumers?
Federal Judge Denny Chin threw out a $125 million settlement made in 2008 (pdf) by the Internet search giant with the Authors Guild and Association of American Publishers, though he left the door open for them to return with a better plan. Judge Chin said the deal would give Google a “significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works.”
Under the proposal previously hammered out with publishing groups, Google had permission to scan publishers’ works, allow them to pop up on search results, make 20% of the text available and take 33% of revenue. (Not to mention possibly introduce pop-up ads on e-pages.) Although it would have given the public access to millions of books that would otherwise gather dust in attics, Judge Chin said Google would be “exploiting” unclaimed works.
An “opt-in” clause for copyright owners and publishers was suggested by Judge Chin and previously rejected by Google, but that still doesn’t solve the problem of orphan books, which have no-one to opt in/out for them. A trust established for unpaid royalties from such book sales, however, or non-exclusivity deal for those books might. For instance, the non-profit Internet archive has already said it wants the same copyright protection for the out-of-print “orphan” books.
Thus far, Google is not for turning and not open to compromise. Hilary Ware, managing counsel for Google, insisted that the deal would have given new life to out-of-print books: “Like many others, 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.” Others proponents, like the Authors Guild, have long criticized Amazon’s “hypocrisy” and domination of e-books.
Google hasn’t exactly made life easy for itself by already scanning millions of books. John M. Simpson, director of the privacy project for the non-profit California-based Consumer Watchdog group, supports the digitization of the world’s books, but says, “Google’s entire business model is to never ask permission, but to seek forgiveness if necessary. Judge Chin has ruled simply that you can’t take other people’s property and use it without asking.”
The big question for orphan books is not just about price or copyright. It’s also about those empty bookshelves, this time virtual ones. If Google, the biggest search engine on the web, and publishers can’t find middle ground to appease antitrust lawyers, Congress needs to plot an alternative. What struggling writer wouldn’t want their out-of-print work to be accessible to the world now or after they’re gone. And wouldn’t you want the chance to read it?