Thorny Fairness Issues Delay Decision on Google Books Settlement

February 22, 2010

“I am not going to rule today,” stated Judge Denny Chin of the U.S. District Court in New York City February 18 before hearing testimony at the long-awaited fairness hearing about settlement of the five-year-old lawsuit against Google over its massive book-digitization project. Judge Chin went on to explain, “Voluminous materials have been submitted [with] recurring themes” that he was still digesting. A written ruling is not anticipated for at least several weeks.

Those recurring themes are dear to the library community’s heart: access, fair use, and reader privacy. “Approval of the settlement will open the virtual doors to the greatest library in history. To deny the settlement will keep those library doors locked,” Google argued in its February 12 court filing (PDF file). The only librarian who testified at the hearing echoed those sentiments. “The alternative . . . is the status quo, under which most of the works of the 20th century simply cannot be legally read in digital form, and physical and institutional proximity to great collections is the only effective means of access,” asserted Paul Courant, dean of libraries at the University of Michigan, according to The University of Michigan became one of five founding library partners in Google’s book-scanning initiative in 2005.

Advocating that the amended agreement between defendant Google and plaintiffs the Authors Guild and the Association of American Publishers be scrapped, William Cavanaugh, deputy assistant attorney general for the Justice Department’s Antitrust Division, described the settlement as “a series of forward-looking commercial transactions” whose antitrust implications are under investigation by the DOJ, according to the February 19 Washington Post. Controversial issues include the settlement’s approach to copyright infringement; rightsholders would have to opt out of having their works in Google Books’ database, leaving Google with publishing rights to millions of orphan works until the copyright holder is found; the prospect prompted settlement opponents in January to ask Congress to help establish a nonprofit digital library. “I would surmise that Google wants the orphan books and this is what it is about—orphan books that will remain unclaimed,” Judge Chin conjectured.

Others cautioned that the settlement lacked sufficient reader privacy protections, including Cindy Cohn, legal director of the Electronic Privacy Information Center Electronic Frontier Foundation. “Google will know every page you read,” she asserted, explaining that the firm tracks how users interact with digitized books they purchase through Google Books’ “Get This Book” application. She recommended that the settlement obligate Google to delete reader data after 30 days and to require a court order before giving law enforcement identifying user information, the Daily Online Examiner news site reported February 18.

The Post reported that Google issued a statement after the hearing expressing appreciation for “the concerns voiced,” but reiterating its stance that “the settlement strikes the right balance and should not be destroyed to satisfy the particular interests of the objectors.”