Those of us still paying attention saw that the court overseeing the long-running legal battle between Google and authors and publishers ruled against the proposed agreement last week (“Judge Rejects Google’s Deal to Digitize Books,” New York Times). Good luck figuring out what it means, and more importantly, why anyone should care. But it is important, if for no other reason than it is the result of a massive collision between an industry– book publishing–and the realities of the Internet and digital access to information. If you think you’ve seen this movie before, it does look like the fights over Napster and Internet file sharing that has decimated the music industry. Only in this case, the major players are attempting to find a legal solution.

I’ve been following this since the American Association of Publishers, together with the Author’s Guild, sued Google in 2005 to stop it from copying every book known to man–allegedly in violation of copyright protections. Google’s ambitious project was greeted enthusiastically by researchers, journalists, historians, people who read– just about everybody except those whose intellectual property might be given away for free over the Internet (remember those old companies in the recording industry, and what happened to them after the Internet got popular?) [Full Disclosure– Both the AAP and Google have been clients of mine over the years.]

But it is interesting, if perhaps not quite so important for most of us, to understand at least a little of what this is all about. For Google, it was co-founder Larry Page’s effort to digitize books and make them widely available, at least to search snippets, for students, researchers, historians, and anyone else wanting to  experience the bulk of human knowledge leveraging the Internet. Sounds good enough, and that’s the easy part.

What gets complicated is sorting out the three broad categories of authors.  Actually, two are easy, and one is difficult. The first is the volume of works through history where their copyright protections no longer apply– think Shakespeare, the Bible, The Iliad and The Odyssey, etc. Google (and anyone else) is entitled to go for those. The second is the volume of works under copyright protection where the author and publisher are known and active. Think of all the popular authors you know and love, Anne Tyler, Bill Bryson, Sarah Palin, fiction, non-fiction, and everything in-between. This is, of course, a little more complicated, but those authors (and their publishers) can actively protect their intellectual property, and do so by cutting their own deals for licensing rights, directly with Google or via organizations such as the Copyright Clearance Center [another former client]. Or they can choose not to license their works for internet distribution at all.

That leaves the third category, and that’s what the fight now is really all about. This group includes all of the works where copyright still applies, but where the holder of that copyright– the author or publisher, her relatives, spouse or estate– cannot be found. In this category are (mostly) out-of-print books and other publications, known as “orphan” works, and these are what the judge decided that the settlement was not adequately protecting. The terms of the settlement– worked out between Google, the publishers, and the authors–according to the judge, “would have granted Google a “de facto monopoly” and the right to profit from books without the permission of copyright owners.” He called that “unfair.”

What the settlement would essentially do for orphan works is set up an “opt out” process, where copyright owners could come forward and decide not to participate in the settlement (keeping their works out of Google’s search engines). What he believed is appropriate is an “opt-in” process, where works of copyright owners could be included if the copyright owners come forward and gave permission. The problem with that, of course, is that by definition these people can’t be easily found. That’s the dilemma.

So why do we care? Most of us probably don’t. We are not hot in pursuit of out-of-print obscure books that have been long-forgotten. Unless you are a researcher, historian, journalist, academic, blogger, hobbyist, or anyone who likes to know what there is to know about a subject. Then being able to include these works in your scholarly pursuits can open up long-lost information, and maybe even a gold-mine of data. The courts will ultimately decide what’s fair, but it is a good example of how the Internet is challenging all of our assumptions– for better for for worse.