Survivor: Google Edition

In what has become almost frighteningly routine, the three parties to the disgraced and rejected Google Book Settlement were in court again today to update Judge Chin on the status of their case.  The news coverage is focusing on a few interesting developments – “progress” between Google and the publishers, a seeming lack of progress between Google and the Authors Guild, and a schedule for a trial on the original litigation (which some observers doubt will ever occur).

Back in March, when Judge Chin sided with the U.S. Department of Justice and rejected the proposed settlement, there was an inclination to believe that Google’s audacious attempt to unilaterally rewrite public policy had been defeated.

But as this process unfolds, it becomes more like Survivor: Google Edition – outwit, outlast, outplay.  Emphasis on outlast.  Google continues to scan thousands of books per month – at least 15 million unauthorized scans so far.  Google continues to exclusively crawl and index these scans – for untold benefit to its dominant search engine.  Google continues to wield its nearly unlimited resources to exploit a deliberative legal process so that their efforts can continue.  A deal with the publishers would give Google every incentive to continue an expensive litigation track with an Authors Guild ill-equipped to take on a company that makes $2 billion per quarter in the courtroom.

It’s kind of like those Survivor seasons where one of the tribes has a well-outfitted camp with plenty of food, water and shelter while the other is left uncovered in a desert.  Except that the tribe in question is inhabiting the super camp illegally.

Even so, with the Federal Trade Commission and State Attorneys General investigating every aspect of their business practices and the Senate Antitrust Subcommittee holding a hearing next week into their market power, there is hope for a fair resolution to these issues.

 No offense to the producers or fans of Survivor.

Google’s Friends Running for the Hills

The news that Google’s partners in the ill-fated Google Book Settlement at the Authors Guild have recently filed a lawsuit against HathiTrust, the consortium of university libraries that has received book scans from Google, is just one more sign of the unraveling deal.  In light of the expected demise of the GBS, it appears that the Authors Guild is doubling down on the suit against Google that kicked this entire process off years ago.  As the complaint states, “by digitizing, archiving, copying and now publishing the copyrighted works without the authorization of those works’ rights holders, the universities are engaging in one of the largest copyright infringements in history.”

As the GBS heads into what might be its final hearing tomorrow, Google’s friends are running for the hills.  As we said earlier this week, Google’s cool factor creates a moth-to-the-flame effect where people may initially be attracted, but end up getting burned.  It’s been clear to outside observers for some time that Google is all about Google – Google’s book scanning project, despite protests to the contrary, is about making Google money.  While the Authors Guild may have been initially attracted to the idea of working with Google, it appears that they’ve realized that the light that they were attracted to is really a flame.

Adventures in Google’s Audacity

As we approach the September 15^th status update which could signal the end of the road for the Google Books Settlement (especially now that the Authors Guild has filed a lawsuit against HathiTrust, which is the consortium of libraries that has received book scans from Google), it’s worth a step back to take a look at the broader picture that has emerged since we began this process almost three years ago.

At the outset of the Google Books adventure, Google’s scanning efforts were talked about in a whiz-bang, what-will-Google-think-of-next, tone of voice.  After all, Google’s motto is “don’t be evil,” right?  Those crazy kids in Mountain View would never do anything wrong or even . . . gasp . . . illegal!

But once the delays started and people had a chance to think about what Google was really doing, they began to ask questions and peel back some of the layers, attitudes began to change.  People began to realize that Google, being a public corporation, might be motivated by money, and that every time that Google moves into another vertical market (like Book Search) it’s really a new source of consumer information that it can monetize and use to strengthen its dominant position.  Seven years removed, the cross section of consumer advocates, librarians, authors and publishers that have publicly opposed the settlement is indicative of how far the Google Book Search project has fallen. 

If you step back even further, the downfall of the Google Book Settlement is a microcosm of Google’s macro-scale problems.  Less than a week after the upcoming GBS conference, the Senate Judiciary Committee’s Subcommitte on Antitrust will hold a hearing entitled The Power of Google: Serving Consumers or Threatening Competition?”  Like the GBS, over the last three or four years, law enforcement officials no longer accept Google’s “trust us” mantra at face value.  To wit: just a few weeks ago, Google agreed to fork over a whopping $500 million after an investigation by the Justice Department revealed that Google had been assisting (and profiting from) illegal online pharmacies who sold drugs to Americans.  And the Attorneys General of Ohio, Texas, California, and New York, as well as the Federal Trade Commission, have opened investigations into Google’s business practices.  Remember, it was the Department of Justice’s devastating brief and testimony at the Fairness Hearing that captivated the legal and literary communities’ attention and took what was once thought of as a fait accompli and turned into one of Google’s most public repudiations.

 The greed, audacity, and arrogance that led Google to attempt to turn copyright, class action, and antitrust law on its head with the GBS are the same motivating factors that have led to the massive increase in scrutiny of the company as a whole.  It’s too early to tell what the end result will be, but the one thing that is crystal clear from both the GBS and Google’s larger troubles is that the time for blindly trusting Google is long over.

Final KO for GBS?

Since the beginning of this process, criticism of the Google Book Settlement fell roughly into three categories – objectors who viewed the terms of the deal as a complete abrogation of existing coptyright law, those who focused on the role that Google Book Search and the settlement terms played in Google’s continuing abuse of its market dominance in violation of antitrust laws,  and those who viewed the settlement as a total misuse of the class action mechanism. 

Over the last two years, the most direct blows came from those who objected on antitrust (such as the Department of Justice) and copyright grounds (e.g., the Register of Copyrights, Mary Beth Peters, testifying that GBS would “turn copyright on its head”), but it appears as though the final knockout blow will come from the class action objectors.

Professor James Grimmelman, an avid GBS watcher, noted last month that a recently decided case in the Second Circuit with striking similarities to the GBS all but ends any chance that the GBS will survive.  As Professor Grimmelman writes,

 “The parallels between the two lawsuits — the Google Books suit and the freelancers’ suit — are striking. Both were brought as putative class actions on behalf of copyright owners against large commercial entities that have allegedly been making infringing copies. Both were brought by a coalition including the Authors Guild, and indeed, they even used the same lawyers. Both morphed into global settlements that would have provided compensation in exchange for allowing the works to stay in the databases — and possibly be used in new ones. And both settlement classes were riven by the same, fatal fault lines.”

 The long and short of it is that the proposed class is too divided with too many disparate interests to survive, and so it looks like we may be headed to trial.  Stay tuned to see if the GBS can push itself up off the mat, or if it’s really down for the count.  We will know much more after the parties meet again with Judge Chin on September 15^th.