On February 18, the Google Settlement is scheduled to have its long-awaited final fairness hearing in a Manhattan courtroom, although, court-watchers agree, it is unlikely that this next chapter, will be the last. Twice postponed in 2009, the hearing in Judge Denny Chin's Manhattan courtroom will come after months of legal drama, and a September swoon New York Mets fans might appreciate: thought to be a lock in the spring, by mid-September, 2009, the deal was off the table, amid protests from foreign governments, authors, harsh criticism from U.S. Register of Copyrights Marybeth Peters, and a Department of Justice brief that urged the deal's rejection.
As the January 28 deadline to object or to opt out passed last week, it's now clear how steep a climb the amended Google Settlement faces. Opposition has swelled, and if there was any question before, there is little question now: the deal is in jeopardy.
“This was a fairly discrete lawsuit over past copying that got turned into an enormously complicated commercial venture”,” objector Scott Gant told PW last week, just before filing his supplemental objection brief. An experienced class-action attorney at Boies, Schiller & Flexner, and the author of We Are All Journalists Now, Gant says the deal almost certainly faces long odds. “[The settlement] is so far beyond the pale that it is hard for me to see how the judiciary could approve this.”
What went wrong? For the past 16 months, proponents of the Google Settlement have focused on broad, positive themes: the public benefit; the new market it creates for out-of-print books; benefits for the disabled; access for libraries; and a new life for orphaned works—all compelling arguments, certainly. But it seems that the macro, good-for-us and good-for-you argument has not been enough to cut through the unprecedented, complex terms of the settlement document. Is anyone really surprised?
Just before Christmas award-winning author Ursula K. Le Guin posted a rather quiet protest against the settlement on her personal web site: her resignation from the Authors Guild, a group she had supported since 1972. “The issue is so complex, in fact so many different issues are involved, that it's hard to see one's way to definitive action” Le Guin told PW when asked why she decided to become a public opponent of the deal some 14 months after the settlement was introduced. “It was a long, slow simmer that finally got to boiling point.”
Upset over what she viewed as the Guild's overstepping its authority, Le Guin turned up the volume days later, in the media, and with an online petition. “The Guild cannot and does not speak for all American writers,” she protested. “Its settlement cannot be seen as reflecting the will or interest of any group but the Guild.” On January 26, Le Guin filed her petition with Judge Chin—with 367 fellow authors signed on.
Le Guin is far from alone in her concerns about the Guild's representation. Gant has told the court there should be numerous groups of authors, all with separate counsel. And University of California, Berkley law professor Pamela Samuelson, in a brief filed last week on behalf of over 100 academic authors, many of them legal scholars, argued that the Authors Guild and its members “do not share the interests, professional commitments or values of academic authors.” Since scholars have a different view of publishing, and what might constitute infringement, than, for example, a romance writer might, and since infringement is at the heart of the matter, Samuelson argues that it is unfair to bind the more than 800,000 academic authors in the U.S. under this agreement, especially considering that Google is scanning primarily from academic libraries, which contain mostly academic books.
From the start, one of the deal's most problematic features was the loose claim of representation by the Authors Guild. That is, how can a group representing 8000 popular writers enact a binding settlement on the entire universe of book authors? Subsequently, the number of authors that have protested the deal has grown steadily. While the Authors Guild has trotted out some major authors in public support of the agreement—notably, its president Roy Blount, and popular science writer James Gleick—supporters are greatly outnumbered by the opposition in the court filings, which include handwritten pleas, like the one scrawled across the panicked objection of Delores Karl, the widow of scholar Frederick Karl, author of 17 books. “Dear Judge: please defend copyright and my husband's rights.”
“You can't expect authors even to appreciate what is going on with this settlement, let alone take steps to understand it,” Gant told PW. Even with his considerable background in class action and complex litigation, Gant says it took him no less than 15 hours just to read and understand the basic provisions and structure of the proposed settlement. Had he been hired by authors to evaluate and ultimately file his brief, the price tag would have come in over $100,000, “conservatively,” Gants says.
At a January 20 National Writers Union “workshop” in New York, meanwhile, confusion over the deal was certainly evident. As the panelists sparred over the deal's contents, poet Juanita Torrence-Thompson, whose sixth book of poems, Breath-Life received a Pushcart nomination, was among the confused. “They say that poets and writers are not good business people because we are so creative,” she told PW. “But it's really not a case of ability for some of us, we just want to write, and seeing all the legal mumbo jumbo makes some people's heads swim.”
If the settlement fails, this is certainly one overarching reason why. The deal's architects' either failed to grasp the burden a complex 360-page legal document would place on the majority of those who would be bound by its terms—or they didn't think it important. That the deal itself took 30 months to hammer out, in secret, behind closed doors, with the core disputes unresolved makes one wonder if it was ever reasonable to think that this sweeping proposal for a radical new market, undertaken during a light-speed digital revolution, stood a chance of being swiftly approved.
“I'm not anti-Google,” Le Guin insists, anticipating the criticism her opposition might draw. “It's a fantastic search engine, and I use it all the time, though I do believe that in this case it is doing harm.” A longtime library supporter, she also insists that no one needs to lecture her on the potential public benefit of the proposed deal—it's just that the deal, she notes, is not designed to simply benefit the public. “Nobody who's been a proponent of the Free Public Library system for 60 years is going to argue against any system of increasing and ensuring access to information and to literature. The problem is with allowing a corporation to write the rules, control the access, and almost inevitably set profit before other considerations.”
The legal hurdles
A growing chorus of lawyers and legal experts, not to mention the U.S. Department of Justice, meanwhile, have expressed concerned over the settlement's use of class action law, known as Rule 23. New York Law School Professor James Grimmelmann, U.C. Berkeley's Samuelson, and Gant all have filed objections citing an improper use of class action, as have attorneys for the Open Book Alliance, Consumer Watchdog, and would-be Google competitors such as Amazon.com. For Grimmelmann, his supplemental objection, filed last week, represents a noteworthy turning point.
“I have gone from 'approve the settlement,' to explaining 'how to fix the Google Book Search Settlement,' to being 'deeply concerned about the means it uses,' ” he blogged last week, eventually concluding that the use of class action “is not salvageable.”
What's the issue? Basically, through the class action device the parties use the courts to enact private copyright legislation—in other words, the settlement allows Google to scan the books of rights holders who don't opt-out of the deal. But copyright law is an opt-in system, and changing it from an opt-in to an opt-out system, critics like Marybeth Peters say, is Congress's call. The issue is particularly thorny as it pertains to orphan works. “There is nothing to stop Google from doing commercially what they are trying to do through class action,” Gant explains. “But Google would have gotten fewer books.” Indeed, Google has done much scanning through its partner program—but specifically, under the partner program, Google would never get orphan works because there are no identifiable author to opt in. “Which is precisely why they are doing [the settlement] this way,” Gant continues. “Because they want something they can't get from the marketplace. This would be a profound misuse of the class action device, if approved, and it would open the door to further misuse of the class action device.”
Samuelson agrees, and thinks approval could have a profound impact not just on copyright and future knowledge projects, but on our democracy, with others seeking legislative end-runs via Rule 23. “Why not use class action to achieve healthcare reform,” she quipped in a recent talk. “Who needs a legislature?”
In announcing the settlement in October 2008, Authors Guild executive director Paul Aiken famously said that the task before the parties was to take “Google's audacious library digitization project and transform it into something both good for readers and agreeable to the people who write and publish books,” To do that, he noted, the parties “had to make the project even more audacious.” Critics, however, question whether “transforming” Google's digitization effort into a sweeping new market was ever within the purview of the Authors Guild, and whether this kind of unprecedented class action was perhaps too audacious.
“I'm concerned by the idea that, well, 'we don't have to worry about the technicalities of the law because we're creating output where there isn't some,' ” Gant told PW. “We have these rules for a reason.”
“May I dream?” Le Guin replies, when asked by PW if she has any thoughts on how the embattled deal might be fixed. “Throw out the settlement. Start over.” Of course, starting over would not be easy—and as that prospect looms three weeks before the fairness hearing, the settlement has entered a period of uncertainty and risk. On February 4, we'll know just how uncertain, when the Department of Justice is scheduled to weigh in on the amended agreement.
Whether approved or rejected, court-watchers agree there will be an appeal, and that process could take years. But if the deal is rejected and the parties decide not to pursue a new settlement, or, another suit is filed, it's back to litigation. For Google, which has continued to scan throughout the suit, no settlement means a huge potential liability for infringement, as much $3.6 trillion, according to some briefs. Publishers and authors, meanwhile, fear a loss could open the floodgate to similar digitization efforts.
But the effects could be far worse for the public. A bad court decision on the original infringement claim could gut fair use, and that is the great gamble the settling parties made. Fair use has always been a complex, fluid test of control between rightsholders and society. A narrow court ruling on a case of this magnitude could be devastating for the digital economy, and could grind Internet and search innovation to, literally, a slow crawl. And, forget about the millions of orphan works.
“In a world where everyone can self-publish, search engines turn what would otherwise be a deafening cacophony into the best party ever,” Grimmelmann explained in a PW article this fall. “That's good for freedom, and good for democracy. Building better search engines is a moral imperative.” It's also why, Grimmelmann adds, if the case went to trial, “Google should win.” But do we really want a question this important, this loaded with impact for our culture, to be decided by a court?
On January 26, Harvard's Lawrence Lessig called the settlement path a “path to insanity” in the New Republic. But he does not lay the problem at the feet of the parties, however; in fact, he praises its architects for their thoughtful effort, working within a badly crafted copyright and legal regime. Because analog-era copyright law regulates the creation of copies, Lessig explains, it no longer translates because “every single use of creative work in the digital space creates a copy,” thus, “every single use must in some sense be licensed.” But that kind of “metered” access to culture he stresses, and would be disastrous for creators.
In the Google Settlement, Lessig suggests, there is the nut of a clever compromise. But the cause, he insists, must be taken the rest of the way home by the public. “The core problem here is not one of Google's creation,” he writes. “It is not a problem that we would expect Google or any other private company to solve.” Indeed, if the settlement exercise has shown us anything, it is that there are simply too many public policy issues wrapped up here—from the balance of copyright, to privacy issues—to be left to a private agreement between corporations.
Even if the Google Settlement now faces long odds for approval, why should the serious work the negotiating parties have put in go to waste? In fact, the settlement's legacy is still to be written. In 10 years, will anyone remember this period of controversy if the end result is a vibrant digital book market, where our out-of-print book heritage is carried forward, orphan works are liberated, and the inefficiencies of our analog-era copyright system are fixed?
In one of Harvard University librarian Robert Darnton's eloquent essays in opposition to the settlement, he argued for something of a government bailout for books. “We are agreed that something must be done to improve the nation's health,” he asserted. “Why not do something to enrich its culture?” The argument is enticing and repugnant at once—the notion of a smooth-functioning national healthcare system is confounded by the ugly debate, discussions of “death panels,” and, ultimately, the watered-down bill now stalling in Congress. But given the strides made by the parties of the Google Settlement, a “public option” for books would not come from whole cloth. If the parties were to make the last, great leap, involve the public, and create a truly great digital library that would lay the foundation for a future knowledge-based market, everyone would benefit.
“I don't think that was their intention,” notes Gant, “but it would be a silver lining to this time-consuming detour if it turned out that it helped prime the legislature to take some kind of action to develop sound policy.”