Googling the Book Settlement, The American (May 26, 2010), examines the proposed settlement of the copyright litigation over Google’s program of digitizing books, and concludes that it should be rejected. This outcome was a surprise to me, since it was not where I expected to come out, but the brief by the Department of Justice turned me around – I don’t know if DOJ’s argument will persuade the judge, but it converted me.

The fundamental problem is that the parties are attempting to use the mechanism of a class action settlement to create an industry structure, highly advantageous to Google, that could never be arrived at by either the market or by a  rulemaking proceeding conducted by a responsible government agency.

Since the vision of digitizing the world’s literature and making it readily available is a compelling one, the “reject the settlement” conclusion is not an entirely happy one, but it will not be be the end of the effort. Productive options are available to the courts, which are the masters of the Fair Use doctrine, and to the Congress, which has plenary power, and these could produce the benefits of the proposed settlement without the baggage of ensconcing Google on an impregnable height of monopoly power.

An additional factor is not addressed by DOJ or any other critic of the Settlement, so I will be the curmudgeon — the position of universities and libraries. These institutions are at risk of serious disintermediation by the Internet, and rightly so, but much of the proposed Settlement, which is ostensibly between Google and the copyright holders, is designed to secure their market power, too.  Why?

My peroration:

To repeat, the conclusion that the ASA  [Settlement Agreement] should fail is not entirely welcome, because the choices are not between this settlement and Utopia. Many argue that the current mess should indeed be solved by legislation, but Congress has not acted, is largely responsible for the problems anyway, and cannot even pass a straightforward bill dealing with the worst problems of orphan works. Besides, since Congress has decided it is responsible for all of American life, it may be too busy running the auto industry, the financial system, and healthcare to turn its talents to the gritty issues of copyright. In this calculus, the ASA beats inaction.

On the other hand, the choice need not be between the ASA and nothing, because some alternative steps to improve things are within the realm of feasibility.

A major possibility is that Google might win the lawsuit. Fair use is a common law, judge-made doctrine, and its statutory embodiment reflects this; the courts are allowed and expected to evolve the concept. They could conclude that digitizing and displaying snippets from an out-of-print book that is commercially unavailable is fair use, period, and if the rights holder shows up, it can demand takedown or a share of any revenues, but not damages. Or the use could be fair as long as the original work is acknowledged, but not if it is simply appropriated. Or this fair-use approach could be extended still further; if the snippets are made available, and the rights holder does not come forward within reasonable time, then it could be fair use for anyone (not just Google) to make the whole work available on the theory that property has been abandoned.

(One reason for Google to settle is the fear of such a victory, and it is lucky for the company that I am not the judge here, because this is what I would decide. It is reasonable to apply such ancient legal doctrines as adverse possession, laches, and the law of salvage to books; if you sleep on your rights for an inordinate time and do not cultivate your acres or find your wreck, the world rolls over you, and what’s wrong with that?)

If the courts do not act under the doctrine of fair use, it might be possible to get congressional attention long enough for it to pass a one-sentence statute telling the Copyright Office: “Solve this, and here is the rule-making authority.” This would allow a finer tuning of the best parts of the settlement, perhaps run by a private voluntary organization akin to that set up by the ASA. It is an interesting thought experiment to consider whether a Copyright Office rule-making would produce such a Google-centric result as the ASA. The answer is, obviously, no.

(An additional cautionary note is also required here, though: different media present different issues, and the prescription for books may not be right for illustrations, music, photographs, or other types of creations.)

Congress could also direct the Copyright Office to set up a system whereby rights holders in books published before some appropriate year in the 1900s must reassert their interest or be subject to having them enter the public domain. This alone would solve much of the problem, since few unavailable works have any significant economic value, and best estimates are that approximately 70 percent of published books are out of print, though still under copyright, 20 percent are in the public domain, and 10 percent are under copyright and in print. Back in the day when copyright was granted for a 28-year term with a renewal available, the renewal rate was only 15 percent.

So rejecting the ASA might delay things a bit, but probably not too long, given the obvious advantages of getting the world’s literature into digital form, and the fact that alternative channels do exist. Considering the stakes, it would be wise to let the tea steep a bit longer.

See the article for the full discussion, and relevant links.