Google’s Schmidt To Book Settlement Critics: What’s Your Solution?

As the proposed Google Book Search lawsuit settlement is debated, I’ve read calls from various critics that everything should go back to “square one” for a solution. Would Google be willing to do this? Google CEO Eric Schmidt says he’s open to ideas, but none of the critics are putting forward new solutions that would resolve the legal case that was filed against his company.

“I’m open to a better solution. You will recall, we had our solution, and we were sued over it. And we then had a-god-knows-how-many years of negotiations with 27 parties, and we’ve actually produced a deal,” Schmidt said, when I spoke to him yesterday.

Google was sued for scanning books that were in copyright without permission of the copyright holders. Only short summaries of a few sentences in length from within the books were shown, and Google’s view was that this was fair use.

“We don’t think we should be sued in the first place. Again, I’m happy to be criticized. But the fact of the matter is we didn’t sue them, they sued us,” Schmidt said.

The settlement doesn’t resolve the fair use question but instead sidesteps around it by granting Google far more rights than it has now. It’s an expansive solution to what seemed a simple dispute over showing short summaries. For instance, Google will have the ability to display up to 20% of books that are in copyright — but out-of-print — to readers. Readers can also buy complete access to read those books online (but not download them). Authors and publishers have the right to completely remove their in copyright books from Google Book Search and have through 2011 to make that choice, if their books were already scanned.

“We have come up with a solution that is acceptable to the parties, by definition, because that’s what’s in front of the judge, and other people don’t like it,” Schmidt said.

Indeed, some people most emphatically don’t like it. The additional rights, the creation of a book registry and many other details have led some to feel that the entire landscape for digital book publishing and copyright is being changed so radically that a new process should start that involves more than a settlement between Google and the two primary groups that sued it, the Authors Guild and Association Of American Publishers.

But while there are plenty of objections (and to be clear, also lots of support), Schmidt doesn’t see opponents suggesting viable alternatives to resolve the lawsuit.

“I would like to hear from the critics a better solution to the problem as opposed to criticisms of the solution that we arrived at after four years of negotiation,” he said. “I read this stuff, and it strikes me that people who only criticize have as their interest the current status quo.”

Certainly some of the loudest critics have vested interests, of course. Microsoft got out of book search last year because it lacked “high commercial intent” but now sees its competitor opening a new market. Amazon potentially faces a stronger competitor in online book sales. Both oppose the settlement.

Still, others seem to have more altruistic concerns, such as the Electronic Frontier Foundation worrying about privacy or the non-profit Internet Archive seemingly concerned that only Google would have easy access to “orphan” works where copyright owners can’t be found. Isn’t there a way for Google to consider their objections and perhaps make them happier about the settlement?

“Let’s review the history. We were sued. This is a proposed settlement to a lawsuit. The ‘going back to square one,’ that involves going to court to have a judge hear testimony on the thing we were sued about. Now do you think a judge will ultimately produce a significantly different outcome than the settlement?,” Schmidt said.

Well, yes. Perhaps a judge might indeed have a significantly different view. Part of the upcoming fairness hearings and the recent call for public comment has been all about that, for the judge to gather enough information to decide if the settlement makes sense for the class involved — authors and publishers. The judge could insist on changes. Potentially, the agreement could be tossed out entirely.

Google itself has already expanded upon the core agreement in a variety of ways, in response to voiced concerns. It released a privacy policy for the future version of Google Book Search (though the EFF isn’t satisfied). It has agreed that books that are in print in Europe will be treated as in print under the terms of the settlement, even if they’re out of print in the United States. It said that other book sellers such as Amazon could sell online access to the out-of-print books that Google would host, promising the majority of access revenue received would go to the seller.

Moreover, today Bloomberg reports that Google is talking with the US Justice Department about modifying the agreement. The Justice Department opened its own review of the settlement in July, even though it’s not a party in the case.  The judge in the case has also ordered Google and the other parties in the suit to respond publicly by Oct. 2, to some of the criticisms received.

While noting the concerns, Schmidt said Google still believes the settlement is the best way forward.

“I want to be very clear and on the record here. We are absolutely in favor of the settlement, and we would like the settlement to go through. We have not changed our view on the validity of this. I think if anything, the criticism tells you how important it is to get the settlement going because without a settlement, you will end up in a situation where people doing what Google’s doing, this will ultimately be sorted out in the courts, because the government is not going to pass any laws in this area any time soon. At least there seems to be no desire to do that,” he said.

I’ll plan a series of articles looking at the book settlement from various viewpoints to come out over the next few weeks. There’s also a “fairness” hearing before the court is scheduled to begin on October 7. In advance of that, many arguments have already been submitted about the case both for and against the settlement. The Public Index has a complication of these.

I’d also recommend visiting:

• Google’s Books Settlement Site: Information compiled by Google, which is in favor of the settlement. Google also maintains a page with statements of support here.
• Authors Guild v. Google Settlement Resources Page: Sadly not up-to-date, from the Author’s Guild, a party in the settlement.
• Google Book Settlement Claims Site: Information designed for authors, publishers and copyright holders, from the involved parties.
• Google Book Search Settlement: A Reader’s Guide from the EFF: Again, sadly not updated much since the settlement first came out, but a good breakdown of big issues in the case. The EFF opposes the deal from a privacy perspective. It has a more up-to-date page on that topic and
• Open Book Alliance: The Internet Archive, Microsoft, Amazon and Yahoo are some that back this group against the settlement. Information from their viewpoint including a “Face v. Fiction” PDF download.

I’d also suggest reading my Search Engines, Permissions & Moving Forward In Copyright Battles post to understand more of the history of the core issue, that of Google having scanned books to make them searchable but not actually reprinting those online.