Google Books and Other Internet Mischief

Abstract

Aristotle said about reasoning that a little mistake at the beginning becomes a big mistake at the end.-George F. Will (1983: 18)Google Books. United States Circuit Judge Denny Chin, sitting by designation on a case he inherited from his days on the District Court bench, took the unusual move of refusing to enter a settlement in the matter of Google Books, despite its being agreed to by both sides and its being widely lauded in the press, and despite his earlier approval of a preliminary version.He did this, nominally, based on numerous objections his Court received as well as a few but substantial amici curiae tendered in opposition to the settlement-but, in fact, or at least, in effect, on a very lengthy period of reconsideration strongly suggesting an action on his own motion. That took courage, and because of that he deserves one cheer.But the settlement1 is far more flawed than the judge allowed in his opinion and the matter requires much more courageous action. Class-action suits are an essential part of the U.S. legal landscape because of the high costs of filing suit against such major players as Google. At the same time, most class-action suits are settled for prudential reasons and offer class members little relief and the attorneys putatively representing them a rather large pay check. This case is an exception to no part of this generalization.Google is probably the single most ethical firm among the major IT (information technology) players. Nevertheless, in this matter, it has acted so badly as to almost defy belief. I am unaware, in the entire annals of U.S. history, of a U.S. company in all but name declaring an entire Title of the United States Code (here, Title 17, the law governing copyright) null and void. Moreover, Google did not act alone, but in concert with a number of putatively not-forprofit libraries, which received good and valuable considerations for rendering material assistance without which the project would have been impossible.Moreover, Google's defenses are risible. Although fair use does allow the quotation of snippets of a work-and not necessarily only short ones, it certainly does not either (a) allow the scanning of entire works or (b) allow the snippets quoted to depend-as Google's do-on search terms entered, because that, of course, allows any user to find exactly what he wants thereby destroying utterly the market value of such works in two ways-first, the obvious way, by giving the potential buyer what and exactly what he seeks, and, second, working from multiple stations-or perhaps the same station at multiple times-to recover much and perhaps all of the work, thereby again completely destroying the market value of the work, even if the user wants to read a good deal more of the book and is not seeking its use as a source of context-sensitive information.2The other defense Google raises, that of orphan works, is, as Judge Chin noted, a matter for the Congress, but beyond that it is entirely disingenuous. Yes, as Judge Chin observed, Google notified class members effectively and promptly-but only after being sued in federal court. If Google were really concerned with orphan works, why was no attempt made to contact even duly registered copyright holders before-the-fact? Google, of all folks, can surely type into its (excellent) Chrome browser http://www.copyright.gov/records.Nor would Judge Chin's proposal to alter the settlement from opt-out to opt-in be of any real assistance. This is because authors who do not care about what Google has done must already, if only in effect, opt in, by claiming their books and inserts. Most authors who have done so have no doubt done so for the reason I have: the old adage about half a loaf being better than no loaf.Sadly, Google has learned absolutely nothing from its flagrant violation of the law, or my recommendations might differ. It has repeated its wholesale violations of Title 17 with Google Scholar, not a subject of the suit, and in scanning whole issues and then using context-sensitive snippets of copyrighted magazines and journals within Google Books, also not covered by the suit, and in continuing its original project for books published after the cutoff date, which, too, are not covered by the suit. …