Hoping to Write a Happy Ending On Google Books

In April, when the federal judge overseeing the settlement involving Google's online book search service gave authors four more months to opt in to, or out of, the deal, many copyright insiders were surprised. Not Allan Adler.

For Adler, vice president for legal affairs at the Association of American Publishers (“AAP”), U.S. District Court judge Denny Chin's decision to delay what was a May deadline until September marked just another twist on a long, bumpy road. (Chin is scheduled to decide in October whether to approve the agreement.)

“Generally speaking,” Adler says, “nobody will be able to argue there wasn't enough due process here.”

Settlement Not Without Contention

There certainly has been enough for Adler. He helped draft the lawsuit that led to the settlement, helped negotiate the terms now under review, and, since those terms were announced last October, has helped hold it all together by fielding countless calls from authors, publishers and lawyers. “This,” he says, “is the largest project that I've undertaken since I've been at AAP.”

Others are glad he took it on. Simon & Schuster general counsel Elisa Rivlin, for example, describes Adler as an “invaluable” participant in the Google talks. “He is very good at dissecting a complex issue that provokes a diversity of opinions and focusing everybody to come to agreement on common interests,” Rivlin says. There can be little doubt that Google's book-scanning program is just that.

As proposed, the settlement creates a $125 million fund, from which authors who sign on will receive a nominal onetime payment, plus future royalties. In exchange, Google gets the right to continue its systematic scanning ' and posting online ' of books in libraries around the world. The digital versions of the books are to be stored in a mammoth Google book registry.

Adler calls the registry a “blueprint for the future” in an industry being swept up in the digital revolution. “One of the ideas behind the registry is that it is not in any way an exclusive deal with Google,” he says. “The registry can expand to a variety of roles and functions and be an intermediate body between someone who wants to use works and the rights holders.”

Not everyone agrees. Among the most contentious points bedeviling the settlement is the power it gives Google to scan orphan works ' those still under copyright but out of print or whose authors can't be found. Some critics say the settlement violates antitrust law by giving Google, via the registry, unfettered control over setting prices for access to the orphan works. In April, the U.S. Justice Department began reviewing the deal. That doesn't faze Adler.

“If someone came up to me at the start and asked me, 'Do you think you'll get the settlement approved without a call from the Justice Department,' I'd have said it's highly unlikely.”

Indirect Route for Adler

Adler took the long way to wind up in the thick of such a landmark case. For nearly two decades after his 1978 graduation from the National Law Center at George Washington University, he had no experience with copyright fights. As a staff lawyer for such groups as the American Civil Liberties Union, the Reporters Committee for Freedom of the Press, and the Center for National Security Studies, his main focus was constitutional liberties ' ensuring, in the post-Watergate era, that the public had the right to obtain and share sensitive government information.

By the time he was ready for the private sector in 1989, he says, his background was an impediment: “Senior lawyers at law firms would say things like, 'We don't question your ability, but some of our corporate interests are more conservative.'”

Adler eventually landed at Cohen & Marks, a small Beltway communications law boutique. His job there put him in the middle of many of the big telecommunications reforms of the 1990s, and also put him in touch with people at AAP. At the time, the group was keen to make sure that the Telecommunications Act of 1996 did not allow the Baby Bell phone companies to exploit their newfound digital access in certain ways.

After going to work at AAP in 1996, Adler helped lobby for the Digital Millennium Copyright Act (see, www.copyright.gov/legislation/dmca.pdf), which would eventually provide the underpinning for the book industry's claims against Google. It was only after watching the music industry battle file sharers that Adler entered the copyright fray.

Action Needed

When, in 2004, Google started making deals with libraries to borrow books to scan, Adler says he knew a response was needed. After taking the issue to AAP's board ' which agreed that a lawsuit was the right course ' Adler had to decide on whether a direct action or a class action was best, recruit plaintiffs, and pick outside counsel. In 2005 the publishers filed a lawsuit in New York federal district court, following a separate class action lawsuit filed against Google by the Authors Guild. Two years later, after settlement discussions got under way, Adler contacted AAP members to confirm that they approved of the deal's details.

Once the deal was announced, it was time to launch the largest-ever class action notification campaign in legal history. Since then, Adler has had his hands full explaining to people that in order to object to the deal, they must first opt in to the settlement class. Asked the ubiquitous “Why settle?” question, Adler says: “We figured the best we were likely to do was, after many years and several million dollars fighting, the Supreme Court would probably hand down a split decision that was fairly narrow in application.”

As for having to wait until October to see whether the settlement is approved, there's only one thing that bothers Adler: “The downside is that it gives people who are opposed to this more time to rabble-rouse.”