The decision, a pivotal moment in the history of electronic books and libraries, stands firm on traditional notions of copyright, monopolies, and privacy. With the agreement rejected, all sides will huddle April 25 to see whether there's a next step.
"I'd love to be a fly on the wall at that meeting," says Corynne McSherry, intellectual-property director at the Electronic Frontier Foundation, which filed an objection in the case along with the American Civil Liberties Union.
"I don't know how they're going to work it out," says Ken Auletta, author of Googled: The End of the World as We Know It.
It's been a twisty-turny journey. In 2002, Google began scanning books into its database. In 2004, it launched Google Search (later renamed Google Books), by which users could view snippets and download, for a fee, public-domain books (those to which no one holds a copyright). Google partnered with places such as Harvard, Michigan, Stanford, and Oxford Universities and began to digitize their holdings.
But many of those books were under copyright, prompting the Authors Guild and the Publishers Association to sue in 2005.
A settlement was reached in 2008. Tellingly, Google agreed to pay $125 million to search for copyright holders and pay authors and publishers fees and royalties. Auletta says, "They were, in effect, acknowledging there's such a thing as copyright. That's a huge admission for a digital company to make."
But in 2009, the U.S. Department of Justice, worried about giving big Google a monopoly, balked. The agreement was amended, and last year it reached Chin's desk. The digital world had been waiting for the outcome.
"The dream of a digital library is one everyone shares," says Auletta. Paul Aiken, executive director of the Authors Guild, says the agreement brought together four groups: Google, authors, publishers, and research libraries. "And what held it all together," Aiken says, "was the idea of an institutional license for out-of-print books." That is, libraries could pay Google for access to its scanned-in books. "All parties saw the great good in that," Aiken says. Readers, scholars, everyone would be able to access millions of otherwise hard-to-find books. But what seems simple in theory turns out to be hard in practice.
Judge Chin sympathized. But making a universal library, he said, "would simply go too far." He saw big copyright problems. He also ruled against the "opt-out" feature of the agreement. Google would have had the right to scan a copyright holder's books unless that person specifically said no. Chin said the mechanism must be opt-in: People must specifically choose to be part of it. That, he said in effect, is what copyright means.
The judge also identified monopoly issues, especially over "orphan books" - books for which rights were uncertain or could not be found. Existing law wasn't strong enough, he said; the orphan-books problem should be turned over to Congress, which has authority to determine and define copyright.
And the judge saw big privacy issues. As many websites do now, Google would have had the right to collect data on those who read or downloaded its books. Chin wanted more protections for users and their privacy.
So does McSherry of the Electronic Frontier Foundation. "In libraries or bookstores, you can browse, you can read a book, and in a bookstore, you can even buy a book, if you pay cash, and there's no record," McSherry says. "We want a world in which readers of online books could read privately, and have control over their personal information."
What should happen? James Grimmelmann, associate professor at the New York Law School, says he thinks the parties will "come back later this month with a revised and much more modest settlement." He thinks Google can win the case that its digitized book list constitutes fair use. He agrees that Congress should decide the orphan-books issue, and he suggests that Congress appropriate "the money for a national digital library."
Can it happen? Auletta says we're watching history: "The old culture of the Internet is shifting. More and more, notions of copyright, and paying for rights and content, are spreading. How far will it go? Will people buy the New York Times behind the paywall? This will in part determine the future of books, magazines, and newspapers."
Contact staff writer John Timpane at 215-854-4406, email@example.com, and twitter.com/jtimpane.