As you probably all know already, on Tuesday Judge Chin (SDNY) rejected the Google Books settlement agreement. [The order and opinion are here] To be honest, I’m not sure I know how I feel about this development. I’ve followed the wrangling over the settlement during the past couple of years, though only out of the corner of my eye, as it were; and I haven’t yet had the chance to study Judge Chin’s order in detail — and, as with many issues of this kind, the devil often is in the details.
But here’s how I think about the Google Books question. I start from the proposition that successful completion of the project would be an incomprehensibly valuable boon to all of humankind. To have (virtually) all the world’s writings, instantaneously accessible from anywhere across the global network . . . what’s not to like about that? The benefits we would all gain from that are unimaginable and incalculable.
Now, there are a set of arguments here — let’s call them the “forward-looking arguments” — that say: Hold on, not so fast on that. There are reasons to think that the project wouldn’t be such an unmitigated good. What happens when Google knows pretty much what everyone is reading? What about Google’s competitors – are they put at an unfair disadvantage if Google is allowed to proceed here?
Those are serious objections, and they do give me pause. To the extent that Judge Chin found these to be problematic in light of the current agreement, I want to read his analysis carefully to see if he persuades me.
There’s another set of arguments against the project — we can call these the “backward-looking arguments.” These go something like this: The settlement is unfair to those authors whose copyright-protected works will suddenly be winging their way around the globe without the copyright holder’s permission. One of the major stumbling blocks to this settlement (and one that a glance through Judge Chin’s opinion indicates had significant weight in his analysis) concerned the so-called “orphan works” — works still protected by copyright, but works whose copyright holders can’t be identified or found. [Copyright protection, of course, lasts so absurdly long under current law that many works authored in the 30s, 40s, or 50s are still protected, though long out-of-print, and identifying the current copyright ownership status for vast numbers of such works is almost impossible]. The settlement agreement would have allowed Google to make certain uses of these orphan works (subject to the copyright holders coming forward, ex post, to “opt out” of the agreement), and the court seems to be saying: We can’t approve that, because that would, in effect, amount to a partial revocation of these copyrights, and only Congress can do that.
To the extent these “backward-looking problems” are the ones that are derailing the project, I’m much less sympathetic, and much more unhappy. Copyright is supposed to “promote the progress of science and the useful arts” – to make us all better off by stimulating the creation and dissemination of valuable works of authorship. It’s not doing that job if, because of the vast uncertainties surrounding questions of copyright ownership (in works that have been around for a long, long time), it is now preventing us from realizing this dream of a truly comprehensive global library. Jefferson had a phrase for this: “the dead hand of the past.” It always tries to control the future, and it is our job not to let it do so unduly. Judge Chin may be right about the institutional competence point — perhaps this is a problem that shouldn’t be handled through private litigation but the legislative process. But if so, I’d like to think Congress would act (though I doubt, given copyright holder clout, they will) to make some provision allowing all parties who wish to bring these works back to the public (not just Google, but anyone who can do this) to do so.