In Which Tom Brown Gets Googled, or why the Google Books settlement is a bridge too far

In Which Tom Brown Gets Googled, or why the Google Books settlement is a bridge too far

Chris Castle is Managing Partner of Christian L. Castle Attorneys, Los Angeles and San Francisco. 

Google has reached a settlement of the "Google Books" case brought by the Authors Guild and the Association of American Publishers against Google and several of Google's library business partners in the Google Books enterprise.  (The 300-page settlement agreement has as many twists and turns as the Single Bullet Theory, so is worth a close read.)  The settlement has been tentatively approved by the presiding judge, and a final decision is expected in 2009.

Certain of Google's library business partners allowed Google to jump start their online book business by permitting Google to scan large parts of their in-copyright holdings without getting authors' permissions-a whole new gig for Marian the Librarian.  The plan was that Google would then do what it does best--sell advertising in those books in a variety of formats, thus defeating a traditional revulsion by authors against advertising in books.  Are you searching for "The Little Prince"?  Google can serve ads for White Castle hamburgers in the book's pages online-or something like that (see par. 3.14 of the proposed settlement). 

Under the settlement agreement, Google apparently pays itself to build the technology infrastructure for a "registry" to process usage and royalty information on millions of scanned books-better than they have on YouTube, hopefully.  This registry is a new U.S.-based non-profit company that could be similar to SOCAN, CSI, the MCPS-PRS Alliance, ASCAP or BMI, a centralized licensing agency issuing permissions in its territory to all licensees on behalf of its members, owned and operated entirely by the writers and publishers.  Of course the Google registry creates a de facto registration requirement that is outside the letter of the Berne Convention and related treaties.

When you sum up Google's domination in search and now potentially in e-Books, the goodies it negotiated for itself in litigation against a far smaller "person", Google's control over the registry data and editorial control over content, the result is that the Google registry will effectively become a new kind of authors' society-a single purpose author's society that grants licenses to one user--Google.  I argue in my column in the Register that it is from that calculated, dominant and bargained-for position of control that Google's new problems begin. 

Chris Castle recently wrote an article in The Register, entitled "Is Google's culture grab unstoppable?"

Opinions expressed are those of the author and should not be attributed to anyone else.  Copyright 2008 Christian L. Castle.