Critic on vacation


In 2005, a case was brought before the United States District Court of New York regarding Google's then one-year-old initiative to scan books and collect them in a digitalarchive.

The class action suit was brought against Google by the Authors Guild, a US advocacy group for professional writers, as well as several other plaintiffs. As presiding United States Circuit Judge Denny Chin wrote in his opinion regarding an agreement proposed some years later, in 2011, “The case was not about full access to copyrighted works. The case was about the use of an indexing and searching tool.” Judge Chin was charged with determining whether the 2011 agreement was “fair, adequate, and reasonable.” He concluded that it was not.

The proposed agreement would have allowed “Google [to] display out-of-print Books without the prior express authorization of the Books’ Rightsholders, but [denied its right to do so] when and if the Rightsholder [directed] Google to stop." Chin described Google’s initiative as “the establishment of a mechanism for exploiting unclaimed books.” In the seven years that Google had “engaged in wholesale, blatant copying, without first obtaining copyright permissions […] its competitors [had gone] through the ‘painstaking’ and ‘costly’ process of obtaining permissions before scanning copyrighted books.” Google’s intention was not to “make [the books] available for purchase” but to be able to sell access to them. “Indeed,” Judge Chin pointed out, “Google would have [had] no colorable defense to a claim of infringement based on the unauthorized copying and selling or other exploitation of entire copyrighted books.” In other words, if Google had been doing the same with physical property, it would have obviously been illegal. But intellectual property rights were potentially different.

Early on in his 46-page opinion, Judge Chin outlined the various positive consequences that Google’s establishment of an online database might have: “The benefits of Google’s book project are many. Books will become more accessible. Libraries, schools, researchers, and disadvantaged populations will gain access to far more books. Digitization will facilitate the conversion of books to Braille and audio formats, increasing access for individuals with disabilities. Authors and publishers will benefit as well, as new audiences will be generated and new sources of income created. Older books—particularly out-of-print books, many of which are falling apart buried in library stacks—will be preserved and given new life.”

Not to be misled, though, Pamela Samuelson, Professor of Law and Information at Berkeley, insisted in the lead-up to the case: “The Google Book Search initiative envisioned in the [agreement] is not a library. It is instead a complex and large-scale commercial enterprise in which Google—and Google alone—will obtain a license to sell millions of books for decades to come.” Given that Google had already been scanning books without permission for years, and since the proposed agreement would have allowed it privileged access to books, the agreement would have yielded it a “de facto monopoly over unclaimed works.” Copyright owners “would [have been] deemed—by their silence—to have granted to Google a license to future use of their copyrighted works.” Judge Chin: “This de facto exclusivity (at least as to [works where it is unclear who owns the copyright]) appears to create a dangerous probability that only Google would have the ability to market to libraries and other institutions a comprehensive digital-book subscription.”

As the objections made clear to Judge Chin, not all of those affected by the Google Book Search initiative shared the same interests. In fact, some groups had antagonistic interests. On the one hand, “academic authors, almost by definition, are committed to maximizing access to knowledge.” On the other hand, “the [Authors] Guild and the [Association of American Publishers] are institutionally committed to maximizing profits.” Ultimately, in 2013, Judge Chin sided with Google.

As of October 2015, Google had scanned more than 25 million books, and the name of the initiative had been changed to Google Books.

Something else: In his opinion, Judge Chin also recognized the “privacy concerns” raised by some objectors and deemed them “real”. He noted that Google would possess “the ability to collect nearly unlimited data about the activities of users of its Book Search and other programs.” After considering this, he wrote: “I do not believe that [the privacy concerns] are a basis in themselves to reject the proposed settlement,” since “[the agreement] provides that Google shall maintain in confidence any Rightsholder's personally identifiable information."

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