In The Plex

by Steve Levy

  What’s more, Google believed it had an excellent chance of winning its case. During a meeting of copyright experts, one of the leading theorists in the field, the Berkeley professor and MacArthur “Genius Award” winner Pamela Samuelson, took a poll of fifteen of her peers—and all but one thought that Google’s fair use argument would prevail.

  But as soon as the ambitious proposal was uttered by Google’s legal opponents, it was a foregone conclusion that Larry Page would sign on. He later would say that Google would have done “whatever kinds of things we needed to do” to make the settlement happen. It was his personal history, and that of Google, that determined that he embrace the scheme. All his life, Page had been the one who confronted problems by suggesting solutions that expanded the project by an order of magnitude. Now someone else was proposing to do the same thing.

  After many sessions to hammer out the details—a difficult process because of the complex needs of the publishers, authors, and library associations that were drawn into the deal—the Google Book Settlement was completed, three years after the lawsuit was filed. On October 28, 2008, Google announced the “landmark settlement” whereby it not only would be free to do its scanning and show free snippets online but would have the exclusive rights to sell digital copies of out-of-print books. It would provide every library in the country with one free subscription to the database and sell additional subscriptions. And Google would pay $125 million, in part to establish a Book Rights Registry that identified rights holders and handled payments and in part to pay millions of dollars to the lawyers who worked on the case. All this would be subject to the court’s approval of the settlement.

  The initial reaction to the settlement was subdued, almost as if people were a bit stunned at the breadth of Google’s coup. For a relatively small sum—by 2008, Google garnered $10 billon dollars in annual revenue—Google had not only won the right to become the sole authorized archivist of a historic and comprehensive collection of the world’s books but had entered a new business without competition. But as people in the world of culture and digital commerce—and Google’s rivals—began to study the agreement, a swell of opposition rose. Eventually the swells became a tsunami.

  The objections were myriad. Some former allies of Google were incensed that it had given up the fight to legally scan books. One new foe was Brewster Kahle, the founder of the Internet Archive, a nonprofit organization bent on preserving all documents on the web as well as information in general. Kahle had been involved in his own digitization process under the aegis of an organization called the Open Book Alliance. Now he claimed that Google had become an information monopolist bent on destroying efforts other than its own to make books accessible.

  Another former friend, Lawrence Lessig, attacked the settlement, calling it “a path to insanity.” His complaint focused on the commercial aspects of the agreement that determined fees for exposing parts of the books to users. Instead of offering a road to knowledge, he charged, Google was constructing toll booths. “The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote…. We create not digital libraries, but digital bookstores.”

  Organizations objecting to the suit included the American Society of Journalists and Authors, the National Writers Union, and the Science Fiction and Fantasy Writers of America. (That last had to hurt, considering all the Googlers who were sci-fi fans.) They insisted that the book settlement cover their works only if they volunteered to be a part of it—switching from opt out to opt in.

  As with almost every other Google controversy, privacy issues found their way into the discussion. Groups such as the Electronic Frontier Foundation and the American Civil Liberties Union argued that Google might log people’s reading habits, adding to what they considered an already obscene volume of information Google held on its users.

  Among the most active objectors were companies like Microsoft, which had abandoned its own effort to digitize books, and Amazon.com, which now found itself competing with Google as a bookseller. Microsoft even funded a legal research effort by a professor at the New York Law School who promised to “hack the Google Book Settlement.”

  Not all of the objectors wanted to quash the settlement entirely. Some agreed with Google that the overall mission—to make the wisdom in books instantly available to all the world—was a worthy one. Some expressed a wish that the settlement would be approved by the court—but only with the changes important to them. Those changes, of course, were often mutually exclusive or were unacceptable to some of the parties in the settlement. But overall, the list of objectors was sobering. There were 143 of them, including academic authors, New Zealand writers, the Electronic Privacy Information Center, attorneys general of five states, and of course Amazon.com and Microsoft. (Since Amazon.com’s Jeff Bezos had been an original angel investor in Google, this was an additional irony. Bezos has not publicly divulged whether he still holds a personal stake in Google.) For good measure, AT&T (which would have organized a grassroots movement against a Google lemonade stand if it existed) joined the pileup.

  Possibly the worst development in the case from Google’s point of view came when the Department of Justice decided to weigh in on the book settlement—in the negative. While specifying that the effort would have considerable societal value, the DOJ contended that it granted Google too many exclusive, anticompetitive privileges. Google’s dream project had become the object of government antitrust action.

  The troubles Google was having in the book settlement were a microcosm of its woes in general. When a small company leveraged technology and brains to disrupt a business model or a cultural tradition, the world saw it as attractive and exciting and viewed competitors as stiff-necked bullies trying to preserve their power. But when a huge, rich company caused disruption, it was itself seen as the bully, and even ill-intentioned competitors drew sympathy. The policy people at Google knew this but still believed that having the truth (as they saw it) on their side would carry the day. “It’s not an environment we used to face, but over the past few years we’ve come to understand it,” said David Drummond. “We like to think we’re data-driven and run our company based on fact and what actually is going on, and so we realize we have to push on that and push back aggressively.”

  No one seemed more stunned at the fury directed toward the company than its founders. Page was appalled at the senselessness of it all, that value was being left on the table. “It’s really a travesty to humanity that we’re in that state,” he said.

  In October 2009, Sergey Brin wrote a New York Times op-ed defending the settlement. He argued that it was an essential part of preserving the world’s knowledge. Conceding that Google should not be the only digitization effort, he implied that if its plans were blocked, a comprehensive effort might never emerge. “At least one service should exist if there are ever to be one hundred,” he posited, with his usual logic. “The companies that are making objections about out of print books are doing nothing for out of print books.”

  A related question came to Schmidt about the settlement being connected to a trend in Google behavior in which the company locked in customers, as Microsoft had done in the 1990s. “There are many reasons why we will not be like Microsoft,” answered Schmidt. He explained that the culture of the company and its founders prevented that, as Google runs on trust. “If we went into a room and were exposed to an evil light and came out and announced evil strategies, we would be destroyed. The trust would be destroyed.”

  Everywhere top Googlers went, they were drawn into dramatic confrontations over the settlement. In an August 2009 informal conference in Sebastopol, California, called Foo Camp, Pam Samuelson moderated a session on the controversy. Brewster Kahle was there, and so was Marissa Mayer. Samuelson’s measured comments dwelled on the lost opportunity when Google had abandoned the fair use argument. (She would later develop those ideas in a lecture entitled “Google Book Settlement: Brilliant but Evil?”) Brewster Kahle spoke of Go
ogle as if it were some alien squad invading Earth in a science fiction movie. Google was killing the dream of access to books, he claimed. He was so passionate his hands were trembling. Mayer could not believe it. This is so crazy, she thought. “Google had acted with such good intentions,” she later said, “and to hear these weird, evil genius, lightbulb-room evil thoughts being projected on us …”

  When Mayer took the floor, her voice was shaking with rage. She explained that she had been present when the first book was scanned, and at every step of the way, Google had been out to help people, to help authors, to improve the world. Maybe some people didn’t like every aspect of the settlement and preferred to argue that the copyright line in the sand shouldn’t be here but should be over there. But the truth was—as Mayer saw it—that any person who cared about literacy, about books, about information, about democracy, should want this done. “Brewster,” she said, “would you rather we just didn’t do it? Walk away from the whole issue?” She felt he had to say no, Google’s plan was better than nothing. But he wouldn’t answer.

  The fate of the settlement rested in the hands of Judge Denny Chin of the Second Circuit’s Southern District in New York. After the DOJ brief, Judge Chin postponed a scheduled October 2009 hearing so that the parties could alter the settlement to respond to that and other objections. Google, the publishers, and the authors came back with a new version that made it easier for companies other than Google to participate in book search, limited other exclusive services Google could provide, and reduced the number of foreign works that would be included. The DOJ felt that although the terms had improved, its original objections still stood. It was granted a prime slot in the upcoming hearing.

  The parties to the proposed settlement, along with the objectors, had their day in court on February 18, 2010. The atmosphere was somewhat chaotic in part because one of the organizations supporting Google, the National Federation of the Blind, had bused in dozens of blind people to speak for the settlement. Judge Chin announced at the start that he would not rule that day. He heard the dozens of speakers with a calm, slightly brusque demeanor.

  In groups of four, various supporters and objectors spoke. Supporters talked of the boon that Book Search would provide. Then came the objectors, whose arguments made it clear that Google was no longer universally regarded as a cheeky young start-up committed to empowering people rather than itself. Objectors gave spirited critiques of what they described as a conspiracy against culture itself. Some of the objections were based on the difficult legal question of whether the settlement overstepped the bounds of what a class-action settlement could resolve. It was frequently noted that some of the issues should be resolved only by Congress. Other arguments were broad attacks on how a rich company from Silicon Valley, one that already controlled the world of search, was plotting a vile takeover of the book world. “To approve this [settlement] would only send a message to all corporations,” said one objector. “Go ahead, be unethical, cram any nasty demand down unsophisticated people’s throats as you like.”

  The day ended with four cleanup hitters, the first opposing Google on behalf of the Justice Department and then three attorneys representing the parties to the settlement. The DOJ attorney, William Cavanaugh, focused on the “forward-looking” aspects of the case—Google as essentially a monopoly vendor of orphan books, most of which would find their way into Google’s indexes without permission. That, he insisted, was something only Congress could grant. Despite all the good intentions, he said, this settlement was “a per se violation of the antitrust laws.”

  The final speaker was Google’s counsel, Daralyn J. Durie. Her résumé was Google-esque. At Stanford she had majored in biology and comparative literature, going on to earn a master’s in the latter at Berkeley. She remained at Berkeley to get her J.D. in 1992 and went on to a stunning litigation career, including several cases defending corporations in class-action suits. An opposing attorney called her “one of the future leaders of the profession.” She had represented Google in a previous class-action lawsuit involving click fraud.

  Within ten seconds of addressing the court, her word choice raised eyebrows.

  MS. DURIE:

  Your Honor asked whether it would be permissible to release claims for future discrimination. I would agree that the answer to that question, in all likelihood, is no. That’s because discrimination is evil. The dissemination of copyrighted works is not. That is because the purpose of the Copyright Act is to encourage the production of copyrighted works.

  THE COURT:

  Well, some would say the question is: Is copyright infringement evil?

  MS. DURIE:

  Copyright infringement is evil to the extent that it is not compensated and that it harms the economic interests of rights holders.

  Besides the invocation of Google’s controversial motto, Durie was addressing a relatively minor point by invoking a major one: the first principle of copyright. The Constitution states that the purpose of the copyright is to promote the progress of the arts, not to restrict speech. This was also the principle by which Google had been able to make its impact and its profits. In the Internet age “progress of the arts” by collecting a massive corpus of scannable books wasn’t evil: it was beneficial. Google had already scanned millions of books. Its users were routinely astonished that a query in Google’s universal search box could evoke a passage from a long-forgotten tome. While duking it out in the courts, Google had indeed improved the world.

  But Google’s plight was such that arguments seemed self-serving. Google had become a company that dominated the world’s searches, whose mirror world rivaled the physical world as a working version of reality, a company that had knowledge of virtually everyone’s information, peregrinations, and intentions, a company fighting the giants in computer software, phones, and television. When Google spoke of good and evil, the words sounded hollow at best. Its flaws became magnified, and its virtues seemed calculated.

  When Google’s leaders had been challenged on this point, they felt that logic was on their side, and that logic would eventually convince people that the company’s actions, if not its intentions, were pure. They would say, look at the data. You can’t argue with facts. You’re not entitled to your own facts.

  That was, and continues to be, the view from the Googleplex. But as Google was learning—and so was its philosophical doppelgänger in the White House—outside the mirror world stored and distributed on more than a million Google servers, data and logic do not always triumph.

  EPILOGUE

  CHASING TAILLIGHTS

  On June 8, 2007, Justin Rosenstein, who until recently had been a Google product manager, sent an email to his former colleagues. “I am writing to spread Good News,” the missive said. “Facebook really is That company.”

  Which company? That one. The company that shows up once in a very long while—the Google of yesterday, the Microsoft of long ago … That company that’s on the cusp of Changing the World, that’s still small enough where each employee has a huge impact on the organization … where you know you’ll kick yourself in three years if you don’t jump on the bandwagon now, even after someone had told you it was rolling toward the promised land.

  Rosenstein believed that his new employer not only was as relentlessly technical as his former one but was embarked on its own audacious quest, one that threatened to eclipse Google’s. Facebook was at the vanguard of social networking, a movement with the goal of organizing people through the network of personal connections they collected throughout their lives. Barely three years after its founder, Mark Zuckerberg, had begun the company in a Harvard dorm room, Facebook was signing up millions of users and was on a trajectory to sign up most of the literate world. The same month Rosenstein wrote his letter, Facebook launched a new strategy that allowed software developers to write applications inside its website, almost as if the site were its own little Internet. Even if you didn’t believe that Facebook would be the hub of one’s online life—o
r perhaps one’s entire life—it was a phenomenon that Google could not ignore.

  As recently as the previous year, Google had regarded Facebook as a potential complement to its own business and hoped to make deals to place its search and ads on the site. But when a bidding war for Facebook’s ad contract erupted between Google and Microsoft, Google lost. Instead, Google made a deal with Facebook’s competitor in social networking, MySpace, guaranteeing $900 million in ads over a period of three years. It was a poor consolation prize, as MySpace, which had been purchased by Rupert Murdoch’s News Corporation, proceeded to flub its early lead in social networking. Meanwhile, Facebook kept growing. As its users kept entering their likes, dislikes, interactions, and pictures into the service, Facebook became the owner of a valuable corpus of personal information on the web, all of it inaccessible to Google. When Google’s crawlers got to Facebook, they were turned away at the door. (Facebook would eventually allow its user profile pages to be exposed on Google.)

  Facebook was a scary competitor because in some ways it was very much like Google. True, Facebook wasn’t built on a brilliant scientific advance as Google was, and there was no technical innovation at Facebook even close to the breathtaking Google infrastructure. But Mark Zuckerberg was in the Larry Page mold, a wildly ambitious leader with a quasi-religious trust in engineering. Zuckerberg said that Facebook would have hacker values. Ten years younger than Page and Brin—a generation in Internet time—Zuckerberg respected Google’s values but believed that the older company had lost its nimbleness and focus. He made a specialty of hiring Google people who sought the excitement of building something new. When Zuckerberg needed a strong number two to run Facebook operations, he turned to Sheryl Sandberg, who had built Google’s ad organization. As disappointing as that was to Google, what was even more alarming was the competition for engineering talent. Google could deal with its most brilliant engineers leaving to start their own companies—classic examples were the departure of Paul Buchheit (Gmail) and Bret Taylor (Google Maps) to start a company called FriendFeed. But when Facebook bought FriendFeed, both engineers happily integrated themselves into the ranks of their new employer.