Almost seven years ago to the day that the five of the largest publishers in the world filed a suit in a U.S. district court against Google, the AAP and Google announced that the parties have agreed to settle their litigation. Although publishing announcements seem tethered to the penumbra of the Frankfurt Book Fair, this is not “stop the presses” material: the publishers have been negotiating with Google for some time, even while the Authors Guild determinedly presses their class action engagement. But what is surprising, perhaps, is that so little has been apparently achieved by the publishers through these long years of uncertainty.
Publishers are left to opt-out of Google’s library-obtained dataset, and can now participate in commercializing older titles that Google has never ceased digitizing both in the U.S. and abroad, even if the rate of library digitization may be slowing. Acceptance of an underwhelming result which leaves nothing changed on the ground, as legal scholar James Grimmelmann of New York Law School notes, marks a pivot from 2007 when the suit was launched with a fulsome and righteous salvo: “Publishers bring this action to prevent the continuing, irreparable, and imminent harm that Publishers are suffering, will continue to suffer, and expect to suffer due to Google’s willful infringement, to further its own commercial purposes, of the exclusive rights of copyright that Publishers enjoy in various books …”.
Well, so much for that.
Indeed, it may be that we have seen one of the last set of necessary rapprochements between publishers and technology companies. In the last few months, we’ve seen coordinated agency pricing aimed at Amazon fail; the Department of Justice intervention against Apple in the same case move forwards even while several of the implicated publishers fold their cards and accept a settlement which requires them to pay reparations to their customers; and GBS – a long-running effort to frustrate the digitization of heretofore commercially abandoned books – dropped by the corner of the road like a plagiarized novel. Using phrasing that my tween would have been comfortable with, the AAP president can only salvage that ““Basically when the case was filed seven years ago, that was a long time ago, and the world has changed a lot.”
Yea, well, yea, basically. After all, unlike seven years ago, many of us are walking around with a smartphone that gives us access to integrated consumer media platforms that deliver real-time terrain mapping (of a sort, if you have an iPhone), offer us more entertainment options than existed in the entire world 20 years ago, bring the world’s literature to our fingertips, and let us share our enthusiasm for our latest consumer purchases with several billion of our best friends. Globalized consumerism has surely swayed publishers that being part of the game – integrating as many books as possible into the media decks of Android and iOS tablets and mobiles – is a necessity. Failure to engage means I listen to Carly Rae Jepsen before going to bed instead of reading literary classics like 50 Shades of Grey. And basically, you know, that would be bad, for publishing.
The tally is intriguing. Publishers reassert the ability to form contracts over books for which they claim digital rights, thereby catching up with the French, who signed a similar agreement in June. Works with contested or uncertain rightsholding claims, unclaimed books, and orphan books remain frozen out of anything but discovery through search, presumably. The friction between publishers and artists has regained striking clarity as the Authors Guild continues to declaim that their rights have been indelicately infringed. Yet, with publishers demonstrating that contractual relationships can be attractive for backlist titles, it wouldn’t be surprising for splinter authors to emerge from the AG cocoon, seeking a marketplace precedent for their own rights. Because publishers are pulling out of litigation a large number of books they now see as assets in an investment partnership, the settlement debilitates the Authors Guild claim that they represent a uniform class with self-similar interests over a comprehensive set of titles.
Some commentators have noted that in addition to any financial compensation for their pain and trouble, publishers receive a digital copy of books they keep in play with Google. The value of that gift is open to debate. First, authors may dispute such a distribution. Second, technical characteristics of these files may limit their utility. Library books are digitized through non-destructive scanning, which means their pages are photographed and then processed through image and optical character recognition software. The results can be reasonably accurate for post-WWII era books that have uniform fonts and structure, but they are not the kind of product that is likely to be placed on a retailer’s top shelf alongside contemporary e-books. Having access to the full-text – if publishers get more than image files – means they can provide books to others for the enhancement of search, semantic mining, and other discoverability features. But as an straight shot to having ready-to-roll EPUBs, well, that they ain’t.
At the end of the day, the publisher litigation with Google feels like the remnant of a bad dream fading in the early morning hours. We are where we must be, except that a small number of authors and their lawyers are still clearly motivated to obtain their own payout for the purported harm done them by the hasty presumptions of networked culture. Hopefully, the absence of a falling sky will spur the minds of judges, lawyers, and juries that our conceptions of rights have evolved over the last 100 years. At the time of the 1909 Copyright Act, to publish meant – more often than not – to actively enter a product into commerce. Today, the majority of our “publishings” have more to do with finding than selling. That one might lead to the other, some have yet to figure out. The AAP, and the publishers it represents, to their credit clearly have.