Google Books Has Made Millions of Books Available – But is it Fair?

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google-booksWhen Google was founded over a decade ago, their main objective was to enable people to search the Internet. However, they ultimately decided that this was just one piece of a more ambitious goal: “organize the world’s information and make it universally accessible and useful.”One objective of this mission is to digitize all books and make them searchable. In 2004 they initiated Google Books (at first called Google Print). The company has now scanned and digitized more than 10 million books, the vast majority of which are still under copyright. This initiative raises a number of fascinating questions regarding intellectual property and class action.

Google originally enabled free search of all scanned books, including copyrighted works. When a search string was found in a book, the search would return the name of the book and a short excerpt including the search string. Google claimed that this was fair use of the books’ content. After all, Google was not providing a significant amount of text and it was not making money from the content. Furthermore, Google provided an “opt-out” option, removing books from the search if the authors so requested.

However, the Authors Guild, a professional association representing many thousands of authors, sued Google. Their claim was that the search was effectively a use of the works – and a commercial use, since Google makes money from visits to its site.

A year ago, Google reached an out-of-court agreement with the Authors Guild. Under the agreement, Google pays authors of out-of-print books an agreed-upon fee from all the money Google makes from searches and downloads of these books. The settlement would de facto make Google an authorized marketing agent for millions of out-of-print books.

It is obvious that this arrangement is an immense improvement over the initial situation. Authors of out-of-print books now have an audience for, and a source of revenue from, works that previously were laying unused. Google benefits from the visitors to its site. Most of all, the public benefits by having easy access to literally millions of books.

It may then seem mysterious that this historic agreement needs the approval of a judge. It would seem ever more mysterious that the approval was not rapidly forthcoming. The judgment of Judge Denny Chin was supposed to be issued earlier this month, but by the agreement of both sides discussions are continuing.

The problem is that the Authors Guild suit was a class-action suit. The Guild represents thousands of authors, but the actual number of authors affected is hundreds of thousands, perhaps millions.

The class action is a unique type of lawsuit in which one person or group can sue on behalf of others. This violates the traditional idea of standing: namely, that only a person whose interests are affected has the right to defend his rights.

However, that principle is not really practical if thousands of millions of people each have a relatively small claim; for instance, they were harmed by a drug or cheated by a merchant. It’s not worth it for any of them to go to court and wrongdoers can get off free.

The class action empowers one suit to represent all the affected individuals. However, the problem of standing doesn’t go away. The person nominally representing the individuals may have an incentive to favor his own interests over theirs. The solution the law provides is to require a judge to approve any class-action settlement.

The judge’s job is not to ask if the settlement makes the plaintiffs better off; it almost always will. The question is if even a better settlement may be possible. In the Google Books case, there are still unanswered questions. Is the opt-out procedure too peremptory, discouraging authors from opting out? Does the settlement give too much market power to Google, making it the sole authorized agent for millions of works? Perhaps the amount of money is much more than the authors would otherwise get, but is it really fair? And so on.

The Google Books project is certainly one of momentous historical importance. The vast majority of all books ever written likely will be soon available at low cost to anyone with an Internet connection. A failure to reach any agreement would be an historical disaster.

But it is equally true that we will pay for any shortcomings in the settlement for generations to come. While the delay in the settlement is regrettable, the good is sometimes the enemy of the best. Hopefully the remaining wrinkles in the agreement will be worked out soon.

{Asher Meir-JPost/Yair Israel}


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