Judge Overturns Google Books Deal

BY Jeffrey Brown  March 23, 2011 at 1:54 PM EST

In New York on Tuesday, federal Judge Denny Chin overturned a settlement between Google and the national trade organizations that represent American authors and publishers which dictates terms of a massive book digitalization project, led by Google.

The Authors Guild and the Association of American Publishers had sued Google in 2005 in order to assert the intellectual property rights of book writers and publishers. Together they negotiated a deal, but in turn, raised a greater opposition who felt that it violated copyright law, discouraged marketplace competition and hurt authors.

Ken AulettaTo discuss the decision and its ramifications, I talked to Ken Auletta, a columnist for the New Yorker and the author of “Googled: The End of the World as We Know It”:

 

[A transcript is after the jump]

JEFFREY BROWN: Joining me by phone from New York is Ken Auletta. He’s the author most recently of “Googled: The End of the World as We Know It,” and of course a longtime writer and media correspondent for the New Yorker. Welcome to you, Ken.

KEN AULETTA: Thank you, Jeff.

JEFFREY BROWN: Remind us first of what the idea is here of digitizing the world’s books?

KEN AULETTA: Well, the idea that Google had was that if you’re going to make search for all the world’s information, you can’t exclude books and have a comprehensive search. So what if we could digitize all the world’s books, of books ever printed and so that at your fingertips you would have access to that knowledge. Wouldn’t that be a wonderful thing? And it is a wonderful thing, but what Google did was they set out to do it without seeking the permission, at first, of publishers and authors, so publishers and authors understandably complained, hey, there’s a copyright law here; you can’t just take my information. After a protracted time of negotiations, they agreed to do it together. And Google agreed to pay $125 million honoring the notion that there is such a thing as copyright, which was a huge advance in the debate between old media and new media.

JEFFREY BROWN: Well, they agreed with representatives from publishers and the authors’ guild. There are a lot of writers, competitors, advocates unhappy at the same time.

KEN AULETTA: You bet. Among other things, some libraries were concerned, some people who were concerned that Google had almost sole access to this information, and what impact would it have on say Amazon, which was the complainees here. Other people complained, how does Google have the right to arrogate to itself that they own all “orphaned books.” Orphaned books are books that — and there are millions of them — where you don’t know who the copyright owner is. Google is saying, well, if we’re going to digitize these books, we’ll consider ourselves the owner. Then you have the question that the judge opined on, and that is, how come Google is not allowing people to opt in as opposed to opting out. The difference is really significant. And what it means is that Google and the publishers and the authors’ guild assume that if you didn’t object to the settlement, you have opted in, you agree that Google can digitize your book unless you opt out. But what the judge was saying, no, no, no, all the authors who have copyright have to opt in for this work, and Google is saying that’s impractical, take too much time and be inefficient. That’s one of the issues going forward here.

JEFFREY BROWN: A lot of it from opponents is, it’s a private company, right? That is sort of taking on itself what we’ve thought of as a public, well, the public library, the idea of who has the books that we all access.

KEN AULETTA: It’s a huge issue. On the other hand, Google can rightly say, no government has been willing to spend the kind of money we are willing to spend to do it. Now you could argue that it advances Google’s search business, and it does, but you could also argue that it advances the interests of people having access to books that are out of print, and anyone who wants to do research or search can have access to all the world’s books. That’s a wondrous opportunity that it affords citizens. But these are issues at conflict here and they’re not yet adjudicated.

JEFFREY BROWN: Well, I’m now curious, when you researched, spent all that time at Google, talked to people there for your book, where did this fit in within the company in terms of vision, importance, who’s pushing it, how big a deal was it for them?

KEN AULETTA: Huge. The notion that gave birth to Google was the notion shared by the two co-founders, Larry Page and Sergey Brin, which was all the world’s information should be free and should be available to everyone. But then they ran into this stumbling block. They took access to newspapers and magazines and articles and academic, but they didn’t have access to books. So they had this idea, which was idealistic, but it was also naive. Larry Page was the leader of this, and he said, well, we’ll just digitize all the worlds books. And they started to digitize the books because typical for Google they don’t ask permission to do things; they just do it. And then suddenly they wake up one day — and this is the naive part — and they suddenly realize they’re in a lawsuit with the publishers and the authors.

JEFFREY BROWN: I remember talking to you when your book came out. Is it really is a naivete? I mean, a true, hey, we’re just going to do it because it seems like a great idea and then they are surprised when they’re brought into opposition?

KEN AULETTA: Surprised, but there was also something — they’re not devils, and the notion that Google is some evil empire is kind of silly, in my judgment, and a gross generalization. But there’s no question that companies like Google believe that it’s important to push the envelope of what is considered in legal terms fair use. In other words, it’s ok for me to digitize your book without seeking your permission. Well the publishers and the authors’ guild fought back, said, wait a second, that’s not fair use; that’s violating my copyright. And those two issues, copyright versus fair use, are in constant war with each other. And ultimately what Google agreed to here, and I think a very significant admission and one that traditional media companies should be very pleased about, they agreed to pay $125 million to publishers and authors, saying in effect, we accept your copyright principle and we accept that there is a limit to what we can call fair use. That was a huge change and hugely important.

JEFFREY BROWN: Finally, where does this leave things? I gather that the judge left open the possibility of some kind of reworked settlement. Do you have any sense yet of what happens next?

KEN AULETTA: No, I don’t think anyone does. I think the dust is going to have to settle here and Google is going to have to go back to the drawing board and with their partners in this, which are the publishers who agreed to the settlement and the authors’ guild, they each have an incentive to try and work this out and to see what is workable and what’s practical. And is there a chance that Google might back away and say, wait a second, throw its hands up in the air and say, we really can’t continue this? They’ve already digitized 15 million books.

JEFFREY BROWN: Yes, I read that astounding number today.

KEN AULETTA: And that’s very expensive to do. No one else is going to step in and do that. You could talk all you want about let’s have competition, let’s open it up to other companies doing it, but I don’t see any volunteers saying we’re going to spend hundreds of millions of dollars to do this.

JEFFREY BROWN: All right. Ken Auletta updating us on the Google Books legal case. Ken, thanks again.

 

Editor’s note: A previous version of this post misspelled the name of the federal judge who overturned the settlement and the phrase “orphaned books.”