Nice try, Google

Copyright So now what? Judge Denny Chin has rejected the painstakingly negotiated settlement in the Google Books case, leaving the outcome of the six-year old litigation uncertain along with the legal status of millions of books already digitized by Google and archived by major libraries.

While Judge Chin indicated he might look more favorably on a revised agreement that allowed authors to opt-in to its terms, as opposed to the opt-out standard in the current agreement, such a change would upend the commercial logic behind the deal and therefore might not be acceptable to Google.

Tellingly, Google had not responded to the judge’s suggestion as of Wednesday, even as the authors and publisher groups that helped negotiate the current deal, along with the Justice Department, were quick to signal their openness to the opt-in idea.

Which is not to say it was a bad decision by the court. Based on my layperson’s understanding of the legal and constitutional issues raised by the settlement, the judge’s opinion seems reasonable enough. The agreement, he found, went beyond the actual legal issues in the case to create far-reaching future business relationships that would advance the self-interests of the negotiating parties but purported to bind others to its terms. In doing so, the parties were asking the court to encroach on Congress’ constitutional authority to set copyright policy and risked violating international law and U.S. treaty obligations — all points raised by parties objecting to the settlement in written comments to the court, including by the U.S. Justice Department.

Judge Chin’s is hardly going to be the last word on the matter, however. The case remains unsettled, and largely un-litigated. The sides engaged in little discovery before beginning settlement negotiations, leaving the factual record pretty thin, and what discovery was conducted happened at least four years ago.

It’s hard to imagine that either side really wants to litigate it at this point, however. At best, the process would take years and there are real questions — acknowledged by Judge Chin — as to whether the interests of all members of the purported class are adequately represented by the current named plaintiffs.

But how to settle it, then, if not by trial? Judge Chin’s suggestion that an opt-in standard instead of an opt-out could do the trick may be legally sound. But from Google’s perspective it’s the same as no settlement at all. Opt-in would leave Google to negotiate terms with individual authors and publishers for individual titles — more or less the same position it’s in now, along with anyone else trying to build a digital book archive. So why do a comprehensive deal, with a Google-funded rights registry and the rest of it? Why not just negotiate a cash settlement for past infringement and leave it at that? Opt-in would also deprive Google of the de facto exclusivity it would enjoy under the current deal, reducing the value of the settlement significantly. For better or worse, opt-in is probably a deal-killer for Google.

Which leaves us…well, who knows? A narrow settlement dealing with past infringement might resolve the legal issues in the case. But what about the millions of out-of-print but in-copyright books Google has already digitized? What would their status be then? Would all those files be erased, and with them the enormous benefit to the rest of us in having them made searchable (and in some cases commercially viable)? Would anyone actually want that to happen? But then who would have access to them and on what terms? Even if Google agreed not to make use of them, the libraries it partnered with all have copies as well.

All of those questions will no doubt keep the lawyers busy for some time yet. But if anything the broader issues raised by the case and settlement have only grown more pressing  as the case has dragged on. In the six years since the suit was first filed, digital reading platforms like the Kindle and now the iPad have gone from s novelty to a major component of the publishing business. Many books today sell as many or more copies in digital form than in print form.

Those new platforms now promise to unlock significant new value from older texts, including many that have long-been out-of-print (a concept now rendered effectively obsolete), to say nothing of the scholarly and scientific value of making vast libraries of information easily searchable for the first time. The same is true of digital platforms and other types of media as well, including photography, graphic arts, film, music and video.

That raises the commercial, competitive and societal stakes for all involved, and makes the question of who gets to exploit that value more than merely a legal or academic one. Google and the authors and publishers are now back to square one. And for now, at least, the rest of us are, too.

Further reading:

Forget Congress, Make Google Books a World Heritage Site