Does the Google Amended Settlement Agreement Matter?

The New York Times and paidContent have weighed in on Daniel Chin's recent ruling rejecting the Amended Settlement Agreement between Google and a number of publishers and authors. Does an agreement really matter?

Legal agreements help aggrieved parties recover damages when a law has been broken. In this case, copyright law. Justice Chin threw out the agreement because it was too broad, which points out the first problem with the case: copyright law may have been broken, but the law itself is broken.

Chin doesn't want to do congress's job re-writing copyright law. He wants congress to fix copyright laws written before digital information was a twinkle in any lawyer's eye, to update the law so that authors, publishers, distributors and retailers know how to play with each other in today's world of cheap memory, OCR, and digital reading devices.

After Chin's ruling, the parties have signaled they will attempt to reach a less far-reaching agreement. This points out the second problem with the case: at this point, the aggrieved parties aren't so aggrieved.

Google has an economic advantage that increases over time. Books that haven't seen the light of day practically since their publication are now both searchable and purchasable. Publishers have no incentive to dig out all the out-of-print books to sell a few incremental copies. Google, on the other hand, has the incentive of increasing the value of its search results by including off-line information its competitors lack. The by-product of Google's industrious book scanning is found money for the publishers, incremental sales of out-of-print books. The only thing to negotiate, really, are prices and percentages.

Google has scanned about 15 million books by now, of which 2 million are public domain. There is one real legal problem, as paidContent explains:

[Google] scans in-copyright and in-print works, and despite suing Google over the scanning, publishers are working with the company to make sure their new books show up in Book Search. Typically, searchers can peruse about 20 percent of those books for free, and then have an option to pay for a full digital copy. The problem is the middle zone—books that are in copyright but out of print. Google Book Search can only display a tiny snippet of those works, and it’s impossible to purchase full digital access.

Presumably, that is the problem Google and publishers will address in the next version of their agreement. And maybe congress is off the hook. For now.