It looks like Google’s attempt to bury the hatchet with authors and publishers in its bid to digitize a world’s worth of books may be in jeopardy after a New York federal judge on Tuesday rejected a $125 million settlement reached in October 2008.

Google promotes that settlement on its Google Books page as “with a broad class of authors and publishers to make the world’s books even more accessible online,” but Judge Denny Chin was having none of it. Chin said the deal would “arguably give Google control over the search market,” and that its terms went too far. Specifically: That the settlement would give Google a “de facto monopoly” on digitized content.

You may have heard that Google wants to scan and convert to text every book in the known universe. You may have heard that notion sold by politicians like John Conyers as possibly “the greatest innovation in book publishing since the Gutenberg press.” You may also have heard it called “a disaster for scholars,” or as UC Berkeley language professor and longtime NPR contributor Geoffrey Nunberg puts it, “a mishmash wrapped in a muddle wrapped in a mess.”

Google’s argues it just wants to let you search the full text of any book scanned and digitally tucked away in its online database. Also: That it wants to “democratize knowledge” by scanning essentially everything textual created since, well, ever (precisely 129,864,880 books at last count, according to Google, of which its scanned about 12 million so far). That worried pretty much everyone in the publishing industry when Google made its plans public in 2004–enough to trigger several domestic and international lawsuits.

In 2008, Google settled with the Authors Guild and Association of American Publishers, agreeing to pay $125 million upfront and make it possible for authors and publishers to get paid any time their books are viewed online, all in trade for the right to publish millions of books online. The settlement’s been knocking around the legal system since, finally landing in the Second Circuit Court of Appeals on Tuesday.

Google called the ruling “disappointing,” no surprise, but Chin left the door open for an amended settlement by rejecting the current one “without prejudice.” What’s to amend? Chin wants the settlement switched to “opt in,” preventing Google from using copyrighted material by default if copyright owners fail to “opt out.”

Does all of human knowledge registered as text “want to be free”? It’s probably the wrong question. The right one is: Do we want a single strictly commercial entity holding the e-library door and key to every novel, history, treatise, and manual ever written, including how it’s indexed, presented, and shared?

 
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