Google wants to bring to the masses every word of every book ever written which in and of itself is not a bad thing really. But the Department of Justice continues to say no, not quite yet. Despite the fact that Google had reached an agreement with the Association of American Publishers and the Authors Guild to settle a 6 year old copyright infringement class action suit, a New York court ruled that the settlement agreement “…would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case”. Backing up the position of the court, the US Department of Justice stated that the ruling was “…the right result”.
On the surface, that ruling may seem unjustified since some authors, publishers and Google all seem to agree on how to move forward with scanning books and making them available on Google’s eBooks. But a deeper read reveals that not to be so. Specifically, the agreement would allow Google to scan and make available copyrighted works even if they cannot locate the copyright owner or obtain permission to distribute. That alone is a show stopper and is contrary to the very foundation of copyright law. And it rightfully terrifies authors.
As if the copyright issue is not concern enough for the courts, there is another and perhaps more industry pressing issue: the anti-competitive nature of Google’s behavior. Google has already scanned over 12 million publications, many without copyright permission, a perhaps insurmountable lead over potential competition. Google’s agreement also gives them exclusive rights to so called “orphan books” where the rights holder cannot be located or determined. Think about that, no one else could ever scan these works…making Google the defacto owner of potentially millions of creative works worldwide and ultimately the sole controller of who and how anyone ever reads them online. This in particular rankled the court as Judge Chin stated “The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties…”.
Google is also trying to impose the discredited internet practice of requiring an “opt-out” to their program (against the normal rules of the Copyright Act), raising major concerns not just from the Justice Department but also consumer advocacy groups such as Consumer Watchdog, which stated “The settlement still abuses the class-action mechanism and purports to enroll absent class members automatically into new business ‘opportunities,’ in violation of current copyright laws. This scheme acts to the disadvantage of absent class members and would result in unfair competitive advantages to Google in the search engine, electronic book sales, and other markets, to the detriment of the public interest. Along the way, the settlement raises significant international law and privacy concerns.”
It is clear that Google is under pressure from the Justice Department, consumer groups, publishers and authors. But this story is far from over. Keep in mind that Google has spent millions of dollars and employed big name Washington lobbyists such as McBee Strategic Consulting and the Podesta Group to achieve their goals via influencing legislation. For the moment, Google’s announced mission “to organize the world’s information and make it universally accessible and useful” has been halted by Google’s own missteps, miscalculations and disregard for established copyright law.