That provision was corrected in a revised version of the settlement, but the Amended Settlement Agreement (ASA) continued to give Google legal protection that would be denied to any of its potential competitors.
According to the original version of the settlement, they were to receive revenue from the sale of the orphan books according to a standard formula for dividing the pie: 37 percent to Google, 63 percent to the plaintiffs. This provision made Google and its partners effective proprietors of works they had not created. It gave Google exclusive protection against legal action by any rights holders who might be identified-no small matter, as there are probably several million orphan books (recent estimates go as high as five million), and the damages for copyright infringement could begin at $100,000 per title. Third, in setting terms for the digitization of orphan books-copyrighted works whose rights holders are not known-the settlement eliminated the possibility of competition. But the logistics and the transaction costs might make the task unfeasible, and the problem of orphan books would remain unsolvable without congressional legislation.) (If enough of those authors could be located or volunteered to consent to the settlement, Google Book Search might build up a large database of books published since 1923. Authors of out-of-print books who failed to notify Google of their refusal to participate in its project were deemed to have accepted it. The business plan led to a second misstep, because it included a dubious opt-out clause. Instead, Google chose to make its opponents its partners in a gigantic new library and book business, Google Book Search. In this way, it might have won its case against the plaintiffs, the Authors Guild and the Association of American Publishers, and at the same time it could have helped revive fair use as a legitimate means of spreading knowledge-for example, in making digitized material available for teaching purposes. Thus, Google could have justified its display of snippets of text in the search results by invoking the doctrine of fair use.
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According to that plan, you would have been able to use Google to search the contents of books for a particular word or brief passage, but would not have been able to view or download a lengthy excerpt or an entire book. Extrapolating from the dense, 48-page text that accompanied the judge’s March 23 decision, it is possible to locate six crucial points where things went awry:įirst, Google abandoned its original plan to digitize books in order to provide online searching.
Judge Denny Chin’s opinion in rejecting the settlement between Google and the authors and publishers who sued it for infringement of their copyrights can be read as both as a map of wrong turns taken in the past and as an invitation to design a better route into the digital future.
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