The Google exception?

Way back when the Google Books issue first burst forth, I expressed considerable skepticism that their plan to scan the universe of books and put it on line could be described as anything besides copyright infringement.  As I wrote in my firstest post on the topic nearly four years ago:

Book him, Danno!

Book him, Danno!

It sounds like copyright infringement to me to put someone else’s entire work into a database “just to make it accessible and useful.” What am I missing?

I actually kind of softened on that recently.  Maybe Google Books is just the world’s biggest card catalog, but better?  In fact, on Likelihood of Success today, I linked to an internal page on — which although it is authorized by the publisher, works quite similarly to Google Books — and didn’t feel as if I were doing anything like infringing, and indeed felt more as if I might help an author sell some books.

Well, Patrick from Popehat is here to get me back on the straight and narrow:

While, as a consumer of books, I’m happy enough for myself that if this settlement goes through I’ll have access to many more than I have now, and for free, I’m deeply concerned about the fairness of this settlement to the authors themselves.  I’m sure many will be happy to get a little money they wouldn’t otherwise receive.  Others don’t know about the settlement, or don’t care.  And still others think they should have the right to control their intellectual property, absolutely. . . .

Under the Google Books class action settlement, Google, alone in the universe, would be allowed to reprint and redistribute the work of any author who doesn’t opt out of the settlement, with or without the author’s consent.  And it’s a fair bet that most authors don’t know that their rights are being bargained away.

Hm.  Maybe my glossing over the distinction between Amazon’s “search inside” feature and the Google “mandatory license” approach was error.  I do like Patrick’s point about the difference between authorization and a mere presumption of authorization.  I’m not sure I agree with his “absolutism” about controlling intellectual property, however, and I don’t think either the Constitution or cases interpreting the Copyright Act would, either.

Big issues.  This is not yet one for the books.