Google Settlement: “Heads You Lose, Tails You Lose”

It seems Google is trying to build the world’s biggest digital library. They have digitized 12 million books so far, but want access to many more. The fairness hearing before United States District Judge Denny Chin of Manhattan was wrapped up on Friday as 26 parties, as well as the United States Justice Department, offered oral arguments for and against the proposed Google lawsuit settlement.

I opened one of my email accounts the other day to find a new message from Publisher’s Weekly about the Google settlement. I was actually in the middle of researching another topic, but the message was so compelling, I ended up spending an hour tracking down related stories.

I was pretty indignant at the idea of Google somehow having some kind of say-so over my rights to the as-yet-to-be-published manuscripts lying around my home office. The situation Google presents to authors whose books were printed before January 2009 is a “heads you lose, tails you lose” kind of proposition.

What happens if you choose to remain in the Settlement? You’ll be able to “claim” your books and inserts, and receive some compensation for the ones that Google has digitized without permission. You’ll also be able to direct Google to remove one or more of your works from the Book Search database, request it not to digitize other works, and control whether and how it displays your digitized works (including whether they’re offered by Google–now and in the future–for sale or download).

In exchange, you give up the right to sue Google for copyright infringement–though you do retain the right to object to the terms of the Settlement. What happens if you opt out? You’ll lose the right to object to the terms of the Settlement, but retain the right to sue Google for copyright infringement. You can also request that Google not display any work of yours that it has digitized, and/or that it not digitize any further work. Google is currently “voluntarily” honoring these requests, though there’s nothing in the Settlement to compel it to do so, or to prevent it from changing its mind.

Not only do I happen to live with a lawyer – my best buddy happens to a lawyer, my brother has returned to school to get his J.D., and countless others are apt to show up for drinks or dinner at any time. So this morning, when I brought the Google settlement up, my in-the-house counsel didn’t miss a beat. “It sounds like the type of arrangement BMI and ASCAP use for the music industry,” she said as she snapped the lid shut on her travel coffee cup. “You should see what they did before you condemn Google.”

As it turns out, these music royalty organizations use something called a “compulsory license,” which lets people use a copyrighted work without getting permission, provided that they meet standard conditions. The difference is, anyone can do this in the music business – Google’s arrangement gives them the sole right to digitize out-of-print books without attempting to contact the rightful copyright owner.

As a writer, this is personal for me. My intellectual property, like the intellectual property of many of my fellow scribes, is often one of the few things I can claim to be wholly my own. The only comfort I can take in this whole process, which may drag on for a few more months before a final decision is reached?

Presiding Judge Denny Chin is the same judge who sentenced Bernie Madoff to 150 years in jail.