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Google Books: Finished?

3:54 PM, Mar 24, 2011 • By JONATHAN V. LAST
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Back in 2007 I wrote a long-ish piece on the Google Books project. The stripped-down conclusion was that Google's attempt to scan and digitize every book ever written would be determined in the courts because, fawning tech writing to the contrary, Google's scheme represented two structural challenges to the nature of American copyright law.Google tried to short-circuit their legal problems by simply purchasing a settlement with various copyright holders--you can do that sort of thing when your market cap is $189B. But earlier this week Judge Denny Chin ruled that this settlement was unacceptable because it would create a de facto monopoly at the expense of un-represented copyright holders. (Part of Google's legal argument was that their monopoly position should actually entitle them to infringe on copyright.)

Google Books: Finished?

But don't cry for Google. Chin's ruling left the door open for some form of amended settlement and Google now believes that they may be able to prod Congress into changing the law on orphaned works--just for them. That's the Google way, of course: require the rest of the world to change to suit their corporate preferences.

When Google Books first appeared, there was no provision for copyright holders to request that Google not infringe upon their rights. But after a large backlash Google eventually decided that they would graciously respect the copyright of any author who expressly requested that they not violate it. (Think of it as the copyright equivalent of the opt-out box for spam.)

Judge Chin seemed to indicate that he would be open to Google using an opt-in regime, whereby Google could ask copyright holders for permission before using their material. Which is how the rest of the world operates. Google--which claims that it can do just about anything, from organizing all of the world's information to building driver-less cars--calls this sensible system unworkable. 

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