Google Book Search settlement gives Google a virtual monopoly over literature

Writing on O'Reilly Radar, preeminent legal scholar Pamela Samuelson cuts through the distractions associated with the Google Book Search/Authors Guild settlement and goes right to the heart of the matter: Google, in acceding to the Authors Guild's requests, have attained a legal near-monopoly on searching and distributing the majority of books ever published.

The Authors Guild -- which represents a measly 8000 writers -- brought a class action against Google on behalf of all literary copyright holders, even the authors of the millions of "orphan works" whose rightsholders can't be located. Once that class was certified, whatever deal Google struck with the class became binding on every work of literature ever produced. The odds are that this feat won't ever be repeated, which means that Google is the only company in the world that will have a clean, legal way of offering all these books in search results.

The Authors Guild and the American Association of Publishers (who took part in the settlement) totally missed the real risk of Google Book Search: they were worried about some notional income from advertising that they might miss out on. But the real risk is that Google could end up as the sole source of ultimate power in book discovery, distribution and sales. As the only legal place where all books can be searched, Google gets enormous market power: the structure of their search algorithm can make bestsellers or banish books to obscurity. The leverage they attain over publishing and authors through this settlement is incalculable.

I like Google. I worry about the privacy implications of some of their technology, and I wish they had more spine when it came to censoring search results in China, but I think they make incredibly awesome search tools and every person I know who works at Google is a class-A mensch and a certified smart person (a rare combination).

But no one, not Google, not Santa Claus, should have this kind of leverage over the entire world of literature. It's abominable. No one benefits when markets consolidate into a single monopoly gatekeeper -- not even the gatekeeper, who is apt to lose its edge without competition to keep it sharp.

The publishers I spoke to about this were incredibly smug about it. Because the settlement gives them the power to keep new releases out of Google, they feel like they can use this to keep the company honest.

This is wrong.

New releases are the majority of the publishers' business, but they're not the majority of the market for books -- and they're only successful because of all the context created by the entire history of literature. If the publishers offer a sweetheart deal on searching new results to Yahoo, but can't give Yahoo access to the orphan works and other catalog items to which Google alone has easy legal access, Yahoo's search tool will never compete with Google's. To understand why, imagine if Yahoo tried to compete with Google by offering a search engine that only indexed the last 30 days' worth of web-pages: it's true that most of the stuff I read on the web was written in the past 30 days, but the 40-50% of stuff I that wasn't is often enormously important to me. In that world, I would have to flick constantly between searching Yahoo and Google to make sure I wasn't missing stuff -- and very quickly, I'd just default to Google.

By design or by accident, Google got the most reactionary elements in publishing to anoint Google the Eternal God-Emperor of Literature. Thanks a lot, Authors Guild -- with friends like you, who needs piracy?

The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world. It and BRR, which will also be a monopoly, will have considerable freedom to set prices and terms and conditions for Book Search's commercial services. BRR is unlikely to complain that the price is too high, the digital rights management technology is too restrictive, or the terms are too onerous.

Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions. BRR will get 63 per cent of these revenues which it will pay out to authors and publishers registered with it, even as to books in which they hold no rights. (Some unclaimed orphan book funds may go to charities that promote literacy.) No author whose books are in the corpus can get paid by the BRR unless he/she has registered with it.

Virtually the only way that, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.

Legally Speaking: The Dead Souls of the Google Booksearch Settlement


  1. Right as usual, Cory.

    I’m not sure how to fix this. Can someone — e.g. a previously-unfound rightsholder or someone else with standing — sue to decertify the class? Or are the only ways to fix this legislation or revolution?

  2. Interesting. Perhaps I misread previous BoingBoing posts on this matter, I was under the impression that you all were for Google having the right to allow titles searchable under its wing. I will have to go back and reread those posts. Even going so far as to chastise the Author’s Guild for deigning to attempt to limit the beast into their own theater. Wasn’t there a noted point where one author was cited as part of the argument that they wanted themselves included as they thought it would increase their readership and perhaps market sales… Sadly we never get the exact unicorn rainbow we hope for.

    Google had no right to step in and undertake this project nor the sweeping legality it begat. It’s no universal library of literature, nor was it a flagship designed to be, just a massive directory of the web and its offerings. Being convenient doesn’t connote it as a proper forum. It is also not some sort of civic entity. It’s a corporation with interests only beholden to itself not the greatest interest of humanity, no matter what their credo happens to be right now.

    As for, and their ilk, I think these are a different kind of beast entirely. They are in the business of bringing published works to the reader, of course for a price, but that is it raison d’etre, and publishing houses *opt in* with “Search Inside the Book” contracts with the full consent of publishing houses and the contract they represent – which also may be rescinded should they need to be. Literature empowers humanity, but it is not the right of profit-minded firms to assume they’ve a right to literature as a commodity.

    I wish the resolution has solely been to ‘opt in’ and yes, included those orphaned works (after exhaustive research that they were indeed orphaned). Sadly no. The whole endeavor is a shame really now, as inevitably no good was to be resolved as soon as lawyers walked into room representing busybodies with their noses in everyone business.

  3. @2: Yes, I’m in favor of Google making those texts searchable as fair use — because every search engine can then make them searchable, too. The idea of asserting that a search result is an infringement, and then giving Google the exclusive license to provide search results is just bonkers.

  4. I’d like to see the responsibility for digital cataloguing with the copyright libraries. In the UK, we have four, with the British Library being the main one and I believe they’re researching this already.

    Once such a catalogue exists and is held by a truly independent body (the libraries in question have no commercial interests), they can sell a non-profit service to search engines to access the catalogue, and possibly offer access to the full text of out-of-copyright works. It’s likely that they’d run a service like this themselves, so it’s a logical step to provide access for commercial search engines.

    As to where this stands legally, I expect they’d be a form of exemption for copyright libraries. Otherwise, they might be able to push for a change in the law to allow them to do it. It’s in the best interests of preserving existing work.

  5. This might be news for you, but US class action settlements are not actually relevant at all in most parts of the world. Could you therefore please sprinkle “in the US” throughout your text a few times and not use expressions like “all” or “the world”? Thanks.

  6. I’m a little confused. How does the Author’s Guild have the power to sign over copyright of all books to google? What kind of authority do they have. Can anyone explain this to me?

  7. Maybe I’ve being naively optimistic, but I think this will only be a temporary monopoly.

    Google put in the time and resources to scan the books. It should own the database it created. However, it should NOT have exclusive rights to the books. If I’m understanding correctly, they still will not.

    Any company that wanted to do the same has the ability. The article lists the potential risks and costs, but, correct me if I’m wrong, there is no obstacle that Google didn’t face in creating their digital library. If it’s worth it, then other companies will take on the risks.

    Unless Google or some form of government intervention tries to stymie competition, then I don’t see the problem. Well, I see it as a temporary problem at worst.

  8. Does this class include authors of non-English language books? Would this settlement be of consequence outside the US?

  9. @8:That’s how class actions work. Once the class is certified, the settlement represents a deal with the entire class. For example, you might bring a class action against a car company for a manufacturer’s defect through which the manufacturer is ordered to pay compensation to the whole class and fix their cars. I, as an owner of an affected car, get to take advantage of this deal without suing the car company.

    Or, I could opt out of the class and sue on my own. But remember that the critical class that the AG is representing here is *the authors that no one can find*. Since those authors are unlikely to come forward in force — by definition — the AG gets to speak for them and no one else is going to get that chance.

  10. This argument strikes me as incoherent in the extreme. It boils down to, “Google did the scanning and obtained a license, but nobody else possibly could.” Which makes absolutely no sense: the license that Google got should now make it *easier* for other scanning projects to approach the Author’s Guild and propose terms for making books available. (Sure, such an agreement might not bear the imprimatur of the class-action settlement, but who else other than the Author’s Guild would be able to bring a serious suit?)

    Further, suppose that Google does become abusive with its license: would this not further encourage competitive scanning teams and the Authors’ Guild to action and agreement? Perhaps even going so far as to stage a lawsuit to provide class-action cover for the agreement? This scenario seems far from impossible, especially if Google does become intransigent with its monopoly. (And if Google doesn’t? Then who cares!)

    I’ve seen this argument rehashed variously in the Times and elsewhere, but for the life of me I simply do not understand the claim. I agree that the Author’s Guild suit and settlement was absurd, but it really doesn’t seem like it could possibly lead to an infopocalypse. Long before that happened, the Authors’ Guild and scanners could just start up their own scanning project.

    Further, this quote that is particularly perplexing: “Virtually the only way that, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books.” What’s the other option? What do people want: that the fruit’s of Google’s for-profit scanning efforts be made forcibly available to competitors or public-interest groups? Of course if another group wants to make books available under different terms, they’ll either have to license the scanned text from Google, or scan it themselves, under some agreement with the Author’s Guild.

  11. One funny thing about this settlement, that I’ve seen posted on some authors’ websites: when they received the letter from the AG lawyer informing them they could claim compensation, as per settlement with Google, these authors freaked out, clearly thinking that the AG was warning them about a NEW affair of “copyright infringement”, not about the Google Books Search brouhaha. I’m not going to name names, but sci-fi authors were not exempt.

  12. “Virtually the only way that, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books.”

    Or in other words, (virtually) the only way for another company to get the same deal would be to perform exactly the same actions as google did and take the same risk as google did. Except in reality the risks would be less, because in a lawsuit the judge would almost certainly take into consideration that this deal already exists.

    I am also uncertain as to what outcome would have been better. I guess if the settlement was google destroy all its scans of orphaned books then at least everyone would be in the same boat. But I am not sure this feels better to me.

  13. Shouldn’t someone have challenged whether A.G. has the right to act for that “class”? Can someone challenge it now? I mean, could I bring a class action suit on behalf of U.S. Presidents and make it stick?

  14. I’ve always said that Google plans to take over the world, and this does nothing to dissuade that train of thought.

  15. Chill out folks. This deal DOES NOT give Google any exclusive rights. It DOES NOT address search results, only reproduction of content BEYOND fair use. It DOES NOT prevent other groups from engaging in similar projects. And Google IS NOT the only major project currently pursuing this.

    The issue is only the assertion that this gives Google too much of an advantage for anyone to catch up. Since Amazon not Google is the current market leader, and since this applies only to books written in the US, I would say no.

    Check out the European Library:

  16. What 13 said. Couldn’t a bunch of non-guild authors, preferably more than the membership of the A.G., get together, and say, “These assholes don’t speak for us, and since they don’t speak for us, we can reasonably assume they don’t speak for any authors not specifically named as members of the Authors’ Guild.”?

    I guess that’s what breaking the class is, but seriously, the A.G. is starting to act like they want to be (or are) the RIAA. They seem like a REALLY vocal minority.

    Maybe there’s a way to dissolve the Authors’ Guild itself? I know, I know, probably not. Fucking troublemakers.

  17. Screw authors, what we have to ask here is what’s best for society in general, and what’s best for the man on the street.

    Just like the RIAA and MPAA, these groups aren’t going to bat for the man on the bus, they’re going to bat for the elite producing segment of the population. If they won it would be another example of business interests topping the public good.

    To me searchable titles are good for ME. In terms of research (I’m a student), in terms of finding books I like.

    I’m glad google has some guts, frankly I wish google had more. Frankly they’re in the position, as pretty much the gatekeeper of the internet, to throw their weight around too. And I really, really wish they would.

  18. The part that bothers me is the permission to sell out of print, but not out of copyright books. That’s just doing an end-run around the whole intention of copyright. Some works are honestly orphaned, and it would be nice for those to be made available to the public rather than lost forever.

    However, many books go out of print for a few months or even a few years, and are subsequently re-released. This is a valuable source of income to the authors and publishers. My wife is an author, and we’ve made a very nice profit over the last year on several books that were once out of print, but are currently selling very nicely.

    Under this settlement, Google could have grabbed those books the minute they were out of print, copyright be damned, and sold them for whatever price they saw fit. Sure we’d have gotten a nickle from Google, but we’d never have managed to get the publisher to re-publish them. We also wouldn’t have the right to negotiate with Google, as their terms are cast in stone and immutable. Copyright basically just ceases to exist for them, and they can tell authors to bugger off. Thanks, Google!

  19. @#20: Yes, a group of authors could get together and object to the settlement. There is a mechanism for this built into the process by which class actions are settled. I’m not sure what stage this case is at, but it might not be too late to do that.

  20. As I sit here looking at a piece from the Albertson’s Monopoly game, it brings to mind a future anti-trust suit. Uncle Sam doesn’t like monopoly, and Google is an American company. I think if Google takes too much advantage of this, there will be anti-trust action.

    Rick Novy

  21. I’m an author and I’ve read the Settlement document. I’ve self-published eight books. They are commercially sold and profitable for me; even though I have had to invest fifteen years of full-time labor and several hundred thousand dollars in these books, taken together.
    The books Google scanned will not be sitting there on their search engine, nor as far as I know, will they be given away. This is a separate project not only from the main search engine, but from the current “Google Book Search” database.
    The Settlement allows Google to sell entire books in several formats: as packages of e-books sold to libraries, as individual e-books sold to anyone, as print-on-demand books sold to anyone, and as parts of anthologies/new books put together by Google. The books scanned include public domain works, “orphan works,” AND about 2.5 million in-print, commercially available books by locatable publishers and authors.
    As one of those entities (perhaps–Google refuses to tell authors whether their books were scanned unless they submit a claim/do not opt out of the Settlement), I feel that having Google produce competing editions of my books would indeed destroy my market. And, though I do not feel the public has a right to writers’ work free of charge (writers have to eat just like everyone else), I will also say that since Google’s plan is to make a large profit, not give these books away, “the public” will not benefit much either. The only people who will really profit from the Settlement will be Google and the Author’s Guild.

  22. How does Google selling an out-of-print book discourage a publisher from reprinting it? It seems to me Google is maintaining interest in out of print books, and the publisher is free to take them back and move them out of the out-of-print category simply by reprinting them.

  23. “How does Google selling an out-of-print book discourage a publisher from reprinting it?”

    Publishers look for the largest possible market. Only a small percentage of books are bestsellers, classics, or otherwise appeal to an inherently large market. If Google, as a large and powerful (if new) publisher is selling that book, then the sales of other potential publishers will necessarily be smaller. This does not appeal to them. They will look for books that Google is not already selling.

  24. Publishers also try to get the largest possible SHARE of a finite market for books. If you’re reading an out-of-print text made available by Google that means that you didn’t just pay Scribner for the latest Stephen King novel.

    It’s not a legal defense, but it’s a clear motive for existing publishers to try to stop this sort of thing.

  25. The door has been opened. The books are online, and available to future readers.
    We can now work on the problems you point out.
    We needed to get them out of “dead tree” format first!

    Anytime a new technology comes along, some history, culture and art is not preserved.

    In Music, for example:
    Only about 1 in every 5 old lacquer 78s ever got released on vinyl. Only about 1 in every 4 vinyl records ever got released on CD. Less then 1 in 4 pieces of music available on CD is now available on the web, at ANY PRICE!

    In 2000, the cable channel American Movie Classics estimated that half of all motion picture film shot before 1950 was already irretrievably lost!

    IN BOOKS THE SITUATION IS EVEN WORSE. partly because the medium has been around longer, and partly because of the realities of how copyright laws are actually applied. IT IS IN THE BEST INTEREST OF SOCIETY AS A WHOLE TO PRESERVE THE CONTENT OF THESE BOOKS IN SOME MANNER! It is also important to make sure they are accessible to those who need or want them!

  26. I posted an article about the symposium sponsored by the Columbia Law School on the long term implications of the Google Books class settlement here. There are lots of nuances about this settlement that even the publishers aren’t picking up on.

  27. I’m with Anonymous #14.

    The fact that Google is first past the post does not make it an evil monopoly. It just makes it first, and now we have the opportunity to access a vast repository of content that was previously either unavailable or unclear in terms of copyright.

    This will make it easier for competitive outfits to join the fray, increasing choice, and reducing prices. In the meantime, consumers can choose whether or not to buy at Google’s prices.

    Pamela Samuelson also remarked in her post that it was abhorent (or equivalent) that Google could make money from something in which they had no had in creating. This is absurd: book sellers do this all the time. They didn’t make the book, and further, and unsold books are the economic responsibility of the publisher: the bookseller just sends ’em back.

    So you could actually argue that this makes the risk of selling books lower for the publisher, while increasing distribution, and opening more choice for consumers (some books free, some fee, some expensive, some not) even while competitive outfits gear up to make the field even more inclusive.

    Last point: someone is always beholden to someone else. Libraries aren’t independent: they are government funded. And that is the only answer any of us need when asking why extensive scanning hasn’t happened before: tax payers won’t ante up. Google isn’t independent either: it’s answerable to its Board and shareholders.

    Folks, there is always a compromise! In that light, I’m for more access and for the opening of a new market for books. And bring on the competition this new market will inevitably spawn.

  28. Google did in fact violate copyright law by scanning copyrighted books, including both “orphan works” and about 2.5 million in-print works by locatable publishers and authors. The livings of publishers, authors, editors, proofreaders, indexers, book designers, book illustrators, cover designers, and others who work in book publishing are dependent on copyright law and the defense of same. Quite simply, I do not see why people involved in producing books, should slave for free to produce information and entertainment for members of society who meanwhile, get paid for their work.

    I am not opposed to Google scanning works clearly in the public domain, whether that is in my personal interest or not. It’s legal.

    However, any arguments that out-of-print books are automatically rare on the market are absurd. Check out the book metasearch engine Also, arguments that most books in libraries are “unavailable” are absurd. Check out your library’s interlibrary loan policy. I myself have ILL’d a number of books dating from as early as the 1820s and received the actual book–not a photocopy, scan, or microfilm–with nary a balk on the part of the library, and for a modest ILL fee. While I am not saying that _every_ book is lent out, the fact is, that most books are and the ones libraries are willing to risk sending out are surprising to me.

    Again, it would certainly be legal for a library or Google to scan those 1820s books instead of lending originals. I have no quarrel with that. However, “orphan works” date from the 20th century. I’ve bought many a one for only a few dollars apiece, hardcovers in excellent condition.

    “Available” is not the same as “free”–which is what people really seem to want from Google books. However, aside from the (often defective) scans of public-domain books Google has already posted as a PR gesture, the Settlement makes it clear Google plans to sell books, not give them away.

    As for arguments that having a competitive publisher (Google) publishing the exact same book increases sales: I’ve worked in book publishing for 24 years, midsize publishers as well as my own publishing house–and I don’t buy it.

  29. Ah–the growing pains. Issues about our beloved internet explode in waves and they are going to get bigger and nastier. Google is a wave maker by default and has no choice but to move forward or get caught in the trough. I have no fear of google. I’m a writer and visual artist who visits google everyday. Have faith folks, the tempest will calm.

  30. One of the Anonymice said:

    “The livings of publishers, authors, editors, proofreaders, indexers, book designers, book illustrators, cover designers, and others who work in book publishing are dependent on copyright law and the defense of same. Quite simply, I do not see why people involved in producing books, should slave for free to produce information and entertainment for members of society who meanwhile, get paid for their work.”

    Most interested parties mentioned are NOT members of the The Authors Guild, Inc.

    This “class” was originally to include every writer in the world. Yet there was so much outcry from so many countries that the court disallowed the settlement, and most of the other countries got out. The new settlement is in the works has been downsized so now only the rights of American, Australian and Canadian writers are at risk.

    And of course “Orphan works”. Presumably also the work of artists reproduced in these country’s books are also at risk. How about sheet music? Probably.

    The Authors Guild, Inc. can’t even speak for the rights of all American writers, (many other American writers and their organization are passionately opposed, so how they can presume to speak for the writers of other countries?

    Mister Moofoo said:

    “These —– don’t speak for us, and since they don’t speak for us, we can reasonably assume they don’t speak for any authors not specifically named as members of the Authors’ Guild.”

    As a reader and a writer I have no problem with Google scanning books for search results. In fact I rather think it was probably a good thing. It helps ME research things and find books I want.

    The Google scans of public domain books is a good thing so long as Google doesn’t claim copyright to any of it. Too many books have already been lost to the world.

    There isn’t even anything wrong with Google charging people money for physical copies of public domain work (not digital). After all, that’s the POINT of public domain. ANYONE can publish any public domain Intellectual Property without having to pay royalties.


    How a could a copyright infringement lawsuit possibly devolve into giving Google the digital rights to everything they can scan?


    Canadian writers have mounted a Canadian Writers Petition in an attempt to get us removed from this dreadful deal at:

    OPT OUT!
    I myself have decided to “OPT OUT” as well as signing the petition just in case, and you can find how to OPT OUT and keep your rights, as well as more about the legal issues at the American National Writer’s Union FAQ at:

    There is a deadline for opting out– they must have your OPT-OUT letter by:

    January 28, 2010.

    Opting out means the writers/artists retain their rights.
    Apparently it is best to OPT OUT via snail mail.

    On the bright side: if the settlement actually does go through,
    Google will have pioneered a new defense for digital piracy.

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