On Wednesday, 1 June, a meeting will take place in New York that could have a profound impact on the future of books. The parties to the U.S. Google Books case — in which Google stands accused of illegally copying millions of books — will meet with the court to discuss the way forward in light of Judge Denny Chin’s decision in March that Google’s proposed settlement of that case was unlawful.
To anyone who cares about European culture and the right of Europeans to decide their own digital future, this meeting could not be more important.
Judge Chin’s decision to reject the settlement was a clear victory for the literary world, as even the United States’ own Library of Congress has recognised. But it was also a victory for competition and consumers. As Judge Chin noted, “Google had engaged in wholesale, blatant copying without first obtaining copyright permissions . . . while its competitors went through the ‘painstaking’ and ‘costly’ process of obtaining permissions before scanning copyrighted works.” Google’s proposed settlement therefore would have had the perverse effect of rewarding Google for its illegal acts, giving Google “a de facto monopoly . . . [because] only Google has engaged in the copying of books en masse without copyright permission.” A significant number of these books were written by European authors or first published in Europe, and yet fell within the scope of the proposed settlement.
Judge Chin also underscored the risks of Google’s unlawful acts to the broader search market. As he noted, “Google’s ability [under the proposed settlement] to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.”
That Google’s proposed settlement was illegal should not, however, prevent others, including rightsholders in Europe, from seizing our opportunity to make books available to readers online. The benefits of online access to books, through schemes that respect copyright and promote competition, are simply too great.
Börsenverein is engaged in precisely such efforts, and we are working closely and collaboratively with libraries, authors, and reproduction rights organisations (RROs) to achieve this goal. Just last week, the European Commission helped advance these efforts by issuing a proposed Directive on orphan works. The draft Directive sets out a framework for the use of orphan works by libraries and similar institutions to advance their public interest mission. Börsenverein has been very active in working towards solutions for orphan works and welcomes the proposed Directive. We look forward to working with the Commission and other stakeholders to support this proposal in the months ahead.
Besides tackling the question of orphan works, Börsenverein and its European partners, alongside authors and RROs, are engaged in a constructive dialogue with the library community to develop key principles for the digitisation and dissemination of books that are out of commerce. We are confident that these books can be made available to the benefit of readers worldwide without infringing copyright or interfering with competition.
As important and promising as these efforts are, they could be overwhelmed by what happens this week in New York. While we hope that the parties to the Google Books litigation will propose a lawful and balanced settlement, we are extremely troubled that Google has continued with its unauthorized scanning of millions of books even as this litigation remains unresolved. This is not only unfair, it also lends credence to opponents’ claims that Google will not hesitate to use its economic power to circumvent the law and to simply carry on with its plans where it is in Google own self-interest. As one objector whom Judge Chin aptly quoted put it: “[Google’s] business plan was: ‘So, sue me.’” So far, we have not seen any proof that this approach has changed.
We call on Google immediately to stop all unauthorized scanning and display of copyrighted books until all litigation over Google Books is resolved. Its actions otherwise threaten to undermine lawful digitisation projects and further entrench Google’s monopoly. If Google does not stop its unauthorized scanning voluntarily, the court should require Google to do so.
Judge Chin’s decision creates a unique opportunity for authors, publishers, technology companies and others to create innovative solutions that respect copyright, benefit the public, and advance competition. Google’s unilateral, legally unjustifiable, go-it-alone approach should not be permitted to destroy that opportunity.
Legal counsel, Börsenverein des Deutschen Buchhandels, The German Publishers and Booksellers Association