Google has always been a problematic company for me. On one hand, its search engine has become the de facto starting point for the vast majority of internet users, so much so that when Google goes down (as it will from time to time), people say that the internet is broken. (See this Ars Technica article.) Its clean, uncluttered search interface revolutionized searching, and its results were usually spot-on, with its “I’m Feeling Lucky” feature almost always taking you where you wanted to go. In recent years, however, my experience with Google’s ability to find what I’m looking for has dwindled as SEO services have cluttered up search results, which is why I often use Bing or Yahoo! in addition to or instead of Google.
I’ve complained before of Google’s data-mining and -tracking, as well as its emphasis on “Cloud” computing. And now, there’s a new bug in my craw: Google Books.
Google Books is Google’s attempt to make a vast digital library, having already scanned in, by Google’s own admission, approximately 7 million books. (Source.) A large number of these books are out of copyright, which does not offend me from a copyright perspective. Another chunk of books are in copyright but out of print. And the last chunk of books are in copyright and in print.
Scanning the in-copyright books is undoubtedly an infringement of copyright, regardless of whether Google made the entire book available for reading on-line. See 17 U.S.C. § 501(a) (“Anyone who violates any of the exclusive rights of the copyright owner … or of the author … is an infringer of the copyright or right of the author, as the case may be.”) And as we saw with Jammie Thomas, the penalties for infringement can be very severe, up to $150,000 per work infringed. (See 17 U.S.C. § 504(c)(2).)
Google, for its part, claimed that it was protected by fair use, and a class action suit was filed in the Southern District of New York. It would have been very informative if the case had been able to go to trial, to assess whether Google’s argument would have prevailed. But now there is a settlement in place, pending final approval by the Court. According to Wired, the settlement is for $125 million dollars, and Google gets the right to sell subscriptions, sell individual books, place advertisements around the books, and make other commercial uses of the books. (See the Agreement, page 19.) In exchange, Google will remit 63% of revenues into a Registry, which will distribute the revenues to the rightsholders.
Additionally, Google will pay a minimum of $45 million into a settlement fund, which will be distributed in the following way: $60.00 per Principal Work (i.e., the principal written work of a book, absent forwards, afterwords, or annotations, etc.); $15.00 per Entire Insert (Inserts are things like forewards, afterwords, prologues, essays, letters, song lyrics, children’s book illustrations, musical notations, and tables, etc.); and $5.00 per Partial Insert (“an Insert other than an Entire Insert”). In addition to the $45 million, Google will pay $34.5 million to fund the launch and initial operation of the registry. (Agreement pages 19-20, 61-62) And, of course, the lawyers get a nice chunk, not more than $30 million. (Agreement, page 64.) (That doesn’t add up to $125 million, though…)
The National Writers Union is unhappy with the settlement terms, and they have joined the Open Book Alliance, which is, to me, an odd marriage; the Open Book Alliance states as its mission the mass digitization of books. (See the OBA’s Mission page.)
Copyright infringement, however is not Google’s only problem. Privacy concerns have cropped up. (Source. See also.) This is because of Google’s ability to track each person who reads a book through Google Books. You may not recall, but the USA PATRIOT Act’s provision allowing the issuance of “National Security Letters” set off a small firestorm. The NSLs allowed the FBI to request a wide variety of records, including what individuals were checking out of libraries, and it prevented the recipients from even seeking the advice of counsel in response. (That provision has since been amended to allow access to counsel.) Cases challenging NSLs are still winding their ways through the courts.
What Google Books is able to do, however, is not just get information on what people are checking out, but what people are searching for, and just glancing at. Google can tell that I just searched on Google Books the following: “The Anarchist Cookbook”; “Bomb Making”; “How to Make a Bomb”; and “How to Rob a Bank.” Not all the results came up relevant, and I didn’t click through to any (except for the Anarchist Cookbook, which is not digitized), but I created a trail that is discoverable.
Admittedly, Google’s data retention means that the government would have one extra step to determine what it is that I’m doing, but the data is there if need be. In response, then, the FTC wants more consumer protection.
So, in sum, Google says its committed to keeping you safe and private, but time will tell whether that will happen.
(As an aside, Commissioner Harbour mentioned in her speech a fascinating development vis-a-vis antitrust: “there is a nexus between privacy and competition, and  privacy issues may be cognizable under the antitrust laws (for example, as a non-price dimension of competition).” Additionally, the Antitrust Division of the DOJ is conducting an investigation to determine whether the Google Books settlement violates the Sherman Act. Interesting stuff.)