Library case is mind-Googling

Google is seeking an IP settlement to create a universal library.

If you have any free brain cells tomorrow, spare a thought for Denny Chin. He is a judge on the US district court in New York. And he has the job of deciding a case which has profound implications for our culture.

At its centre is a decision about how we will access printed books in the future. And, as you might guess, Google is at the heart of it.

For four years the search engine has been systematically making digital copies of books in the collections of major research libraries and making these copies searchable on its website. Users could not read the books online but could find out where a particular phrase occurred in the text.

The scale of the project is vast: it's been called "Google's moonshot".

The company now has digital copies of more than five million books and is adding thousands more every month. And it embarked on this project without seeking anyone's permission, for that is the Google Way.

Not surprisingly, many authors and publishers were enraged and in 2005 some filed legal suits which were consolidated into a "class action".

Google claimed protection under the "fair use" provisions of US copyright law. The social value of making available millions of otherwise-inaccessible books outweighed the damage to (often untraceable) owners of the intellectual property (IP) rights.

But the litigating publishers and authors were not impressed, and the stage was set for a legal death march all the way to the Supreme Court.

Then in October 2008, Google and its adversaries astonished the world by filing a settlement for Judge Chin to approve. This would release Google from liability for copyright infringement for all its past and future scanning and searching.

In return, the company would pay US$125 million ($183.7 million). Google would share ad revenues resulting from the display of texts with authors and publishers, and a non-profit digital rights registry would be set up to collect payments and distribute them to rights owners.

With Judge Chin's acquiescence, Google would be home and dry.

As a commercial deal, it takes one's breath away. Effectively it gives one company a stranglehold on mankind's literary heritage.

"If the settlement is approved," writes Professor James Grimmelmann of New York Law School in his commentary on the case, "Google will have the closest thing to a universal library that the world has ever seen."

And all for US$125 million, which is two days' revenue for it. That is to say, peanuts. It makes Bill Gates' acquisition of the rights to what became the MS-DOS operating system look like butterfly collecting.

But is it a bad deal for society? On the one hand, Google clearly has the capacity to make available everything that has ever been published in print - so that anyone with an internet connection can, in principle (and sometimes for a fee), read books otherwise buried in the collections of elite university libraries. And there's clearly a social benefit in that.

On the other hand, think of the downsides. A single commercial company will control much of our cultural heritage.

Because it is a settlement based on a class action suit, it will give Google a uniquely privileged position in relation to "orphan" works - ie, those which are still in copyright but for which no owner can be located - which will not be enjoyed by anyone else. And third, it will hand the power to determine access fees to a pair of unaccountable monopolies - Google and the digital rights registry. So it is deeply anti-competitive.

There is a simple remedy for much of this: a change in the law to reverse the fact that copyright infringement carries strict liability, which means that there is effectively no limit on damages. This is why so many orphan works remain effectively unavailable: people are too scared to make them available.

But changing copyright law takes eons and Judge Chin has to decide now.

I bet he has an interesting inbox. But I wouldn't want his job for all the IP in China.

- OBSERVER