Google, books, and not being evil.

The Google book settlement.  It’s all around the interwebs, with some people calling it the end to Google’s “don’t be evil.”   At contention is this:  Google took it upon itself with it’s big giant money-lined pockets to start scanning books to make as much of the world’s information searchable (and monetizable) as possible.

Basically there are 3 kinds of books for copyright purposes.  Books that are in copyright, books that are not in copyright (public domain), and books that are in copyright but are out-of-print or “orphaned.”

Copyrighted books are easy.  Google has to get the permission from the author/publisher to make a copyrighted book available.  That author/publisher can decide whether to allow Google to make the book searchable, whether they can show excerpts, whole chapters, or nothing at all.

Public domain books are also easy.  Since they’re owned by the people, anyone can scan them, search them, download them, reprint them, or even wallpaper their office with them.

It’s the works that are in copyright, but essentially MIA that are the source of contention.  Google started scanning them, and The Author’s Guild and the Association of American Publishers sued to stop them.  The Settlement which comes out of that lawsuit, or rather, the proposed settlement that’s been all over the interwebs deals with the issue like this:

Google would make the offending books available for sale as a download.  A “Book Rights Registry” would be created and run jointly by the Author’s Guild and AAP.  A portion of the sale of any electronic book would go to the registry, who would be tasked with distributing the proceeds to the rights holders (tracking them down where necessary).   Google would get 30% of the sale, with the 70% balance going to the rights holders.

Since the proposed settlement went public, it’s gotten some serious opposition from Amazon, Microsoft, the Register of Copyrights, and the national governments of France and Germany, to name  few.  Here’s where I have to scratch my head a bit:

Where I keep getting lost in this, and opposition, is that, as far as I can tell, there is no exclusivity in this settlement.  It would seem that those who are objecting to the deal feel that out-of-print and/or orphaned works should just stay that way, unless the rights holder can be found.

I don’t think it serves the public good to let a rights holder choose to kill a work by taking it out of print, and refusing to grant rights to anyone to make the work available.  I also don’t think it serves the public good to prevent a work from ever being accessible if the rights holder cannot be located.

I do think that a statutory license setting a level playing field for any entity who wants to go through the trouble of scanning millions of books, and making them available is a great idea.  Congress should absolutely do that, and if and when they do, it would supercede the terms of this settlement, and Google would be bound by that legislation for better or worse.  I don’t think that the public should simply be denied access to these works until Congress gets it figured out.

I also don’t see what would prevent Amazon, Microsoft, the Internet Archive, or even me from contacting this independent non-profit being created and entering into a deal with them to do the same thing.  That’s where the opposition is leaving me cold.  Nobody is saying that all books have to go through Google, and since it’s a “settlement” of a lawsuit, which basically means it’s a private agreement, it doesn’t even create any sort of judicial precedent.   In sum, I just don’t think it’s better for these books to be totally unavailable while we wait for Congress to figure out copyright in the 21st century.

About Khidr

I'm an entertainment lawyer and musician. One of the two guys who founded this site with the hopes of adding distinct voices to the entertainment industry.