Revisiting the Google Books Settlement

In light of Tim’s two-part analysis of the Google Books settlement, I’d like to revisit some of the ideas brought up in my own post about the matter and see if I can reconcile my conclusion that this settlement is a win for the public with Tim’s criticisms. But first, let me begin by eating a few of my own words.

I had previously declared that “The job of the judiciary is not to set policy for the public good, but rather to resolve disagreements under the law.” In response, Tim rightly took issue with the statement, by saying “that ship sailed several years ago when the judge gave the green light to a class action lawsuit in which the “plaintiff” is the class of every author in the country.”Even if the settlement is deemed fair to every member of the plaintiff class, the fact that it encompasses an entire industry means that it affects ordinary citizens just as surely as laws like the DMCA do. However, this doesn’t indicate a particular failing of class-action law. Our entire system of common law accepts and embraces the fact that the Courts’ decisions are effectively policy. Now that it’s clear that we’re looking at this from a policy standpoint, let’s take a look at some of Tim’s other issues with the settlement.

In his first part, Tim paints a picture of the industry in which the settlement has raised near-insurmountable barriers to entry in the book-search market where, without the vital protections of fair use, even large corporations with deep pockets can’t really compete with Google. I don’t disagree with this assessment of the situation, but I question how much of this was brought on by the settlement. Way back in 2005 after Google had started it’s ambitious (and audacious) effort to digitize millions of both out-of and in copyright works, Microsoft and Yahoo began a much more conservative project that only sought to scan works whose copyright had expired. Clearly, even before Google “burned the fair use bridge,” the only other major competitors had decided it looked a bit too shaky to invest the hundred or so million dollars it would take to attempt a crossing. In the end, Microsoft pulled out from the project with many observers agreeing that it was competition with Google that drove them away. Thus much of the anti-competitive features of the settlement are mitigated by the fact that other market realities had already made book search a monopoly.

In part two, Tim considers the unique position of the courts to grant Google, and only Google, immunity from the orphan works problem. His analysis is compelling, and I agree with him in principle that bypassing the orphan works problem for a single company raises serious questions about equality under the law. However, I’d like to draw out one point that Tim quickly passes over: that from a practical perspective, it’s a good thing that at least one company has found away around this crippling problem. Without this kind of settlement, it is likely that these orphan works would have remained essentially inaccessible to the world at-large for many years to come. And while I agree with Tim that the solution to the orphan works problems should come from Congress, I don’t think the judiciary should strike down a settlement when it offers a reasonable, legal remedy to a recognized flaw in our copyright system. It is, of course, unfortunate that it will not be easy to extend this same remedy to other corporations, but as we established earlier, the digital book search market became a monopoly before the settlement for other reasons.

To put this all in perspective, let’s look at what would have happened if instead of this settlement, Google had gotten it’s fair use ruling. This would have opened up the “fair use bridge” for anyone to cross, now reinforced by the power of stare decisis. But ultimately, everyone else would still be 5 years and 8 million books behind the world’s most successful Internet company, so competition would still be limited. Furthermore, Google Book Search would have continued to be the same, relatively unexciting service it is today. With the settlement, Google Books becomes a powerful research resources for libraries and educational institutions. Every day users will see far fewer “You have reached your viewing limit” messages, and millions of otherwise inaccessible out-of-print and orphaned books will be available for purchase.

And so, while it isn’t perfect, I still don’t think we can ask for much more.

2 Responses to “Revisiting the Google Books Settlement”

  1. Timothy B. Lee Says:

    Great points. A couple of remaining quibbles:

    I don’t think that common law precedents make policy in quite the same way that class action settlements do. The key thing about common law precedents is that they’re binding only to the extent that a given case involves the same circumstances as a previous case. That means that a court doesn’t have to figure out in advance what the broad social consequences of a particular decision will be: it makes a decision based on the facts in front of it, and it leaves to future courts to decide whether or not that precedent applies to any given case.

    There’s no analogous mechanism for limiting the scope of a class action lawsuit. Theoretically, a judge is only supposed to approve classes in which all members of the class are in relatively similar positions, but as we see in this case that’s not applied very strictly. So Google is negotiating with the commercial publishers of still-in-print books, but its decisions will bind the holders of copyrights on books that have been out of print for decades.

    Second, on the limits of competition in this market: Right now, Google has a formidable technological edge, and so we were unlikely to see a lot of competition in the book search engine space in the immediate future. But this agreement’s effect on the law is effectively permanent. It may be that 10 years from now Google will be a bloated, slow-moving incumbent, and scanning technology will have improved to the point where a second set of scans could be produced for a fraction of the cost. At that point, the burning of the “fair use bridge” will matter quite a bit.

  2. Sajid O. Mehmood Says:

    Thanks for your feedback, Tim.

    You’re definitely right about the common law vs. class action point: I improperly conflated them in my post. Nonetheless, I wanted to retract my earlier statement and note that the judiciary isn’t completely removed from policy decisions.

    As for the prospect of significantly decreased barriers to entry to the digital book search market 10 years down the line: you are undoubtedly right. I have two comments though. The first is that in 10 years, Google’s “most favored nation” status expires. The second, is that while I’m sure 10 years will help scanning technology significantly, I doubt barriers to entry will fall nearly as fast as we’ve seen with other digital technologies in the past 10 years. This is because, at the end of the day, you still have to physically handle 8 million old books, which will likely remain an expensive task for a startup.

Leave a Reply