Many people, including some I greatly respect, are gleeful about the demise of the arduously worked out settlement of the lawsuits brought by the Authors Guild and book publishers against Google. Not me.

It certainly wasn’t perfect. It involved some messy compromises, as settlements tend to do. It couldn’t satisfy everyone.

In creating a vast and widely accessible digital library, bringing back to life many forgotten books, it seemed to give Google, a private corporation, too much power over what, in an ideal world, should be a public resource. (“Public” most emphatically not being a synonym for “free.”)

So now what? I fear that many people underestimate the difficulties that lie ahead. The New York Times editorial page does, and it botches the law by saying, “Google’s loss means that, for now, its search results will show only snippets of text from books that are under copyright but out of print.”

Quite the contrary. Judge Denny Chin stated clearly that Google was not entitled to copy these books onto its servers in the first place: “Google engaged in wholesale, blatant copying, without first obtaining copyright permissions.” The settlement would have authorized Google’s storage and search of the books. That is no longer permitted.

It’s going to be hard to find a way of letting Google keep its illicitly obtained copies and fairly compensate copyright holders, because, for one thing, there are so many of them.

We’re back to a messy real world now. Perhaps the stars are finally aligned for Congress to create a National Digital Library, assembling and preserving all these books, making them searchable, and sharing them with readers in a way that fairly compensates the rightsholders. This Congress seems pretty dysfunctional, but who knows? The settlement, now defunct, at least provides a well thought-out framework for how it might be done—with or without Google.


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