Earlier this afternoon, a New York federal district court struck down a settlement Google had brokered with the Author’s Guild over its digitization of books.  The settlement would have allowed Google to continue the scanning and digitizing books, and simply paying a fine for its copyright infringement. The settlement went “too far” however, in the words of Judge Chin:


The settlement which the Authors Guild and Google had come to with would have handed Google an entire market that no competitor could have touched, as they were not privy to the settlement.  Google could continue to engage in the practice of digitizing copyrighted books, free from prosecution.  If Amazon, Yahoo, Microsoft, Facebook, or any other Internet giant wanted to engage in the exact same practice, they would be breaking the law In order to achieve the same advantage as Google, any company would have to break the law, go to court, enter a protracted legal battle, and hope for the same settlement that Google received.  Why would a court hand over an entire market to a corporation, free from any competition — especially one that already has a 70% market share on search?  Judge Chin acknowledges this in his decision:


Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.


This would only further cement Google’s domination of the search market, an advantage they clearly don’t need, and one that no company, regardless of size, should ever receive from any government.


Allowing Google to continue digitizing copyrighted material without the permission of authors would, as The American Consumer Institute’s own President Steve Pociask suggested, be akin to a court fining a burglar for theft, then sending him on his merry way with a free pass to burglarize some more.  Undoubtedly, making these books accessible to researchers, students, and disadvantaged people all over the world that couldn’t otherwise afford these books would be a good thing.  As the judge said in his decision:  


While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far.  It would permit this class action – – which was brought against defendant Google Inc.  … to challenge its scanning of books and display of “snippets” for on-line searching – – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners.


But sacrificing intellectual property rights isn’t the right way to do it.  Sure, the quest for knowledge and learning is wonderful, but would a court make this same concession to someone who snuck a video camera into a movie theater to illegally record a documentary?  I think not, and we shouldn’t treat this situation any differently.



Zack Christenson is a Chicago-based digital strategist who writes on tech policy.