It appears that the settlement reached over the Google Book Project may not be as much of a “done deal” as previously thought. Indeed, it is being challenged by several competitors in the digital book industry who wish to see certain revisions put into place before the Court approves the terms. See Jessica E. Vascellaro & Geoffrey A. Fowler, “Tech’s Heavyweights Put Google’s Books Deal In Crosshairs,” Wall Street Journal, Aug. 21, 2009, at B1.

It is also being investigated by the Department of Justice as a potential antitrust violation. See Jessica E. Vascellaro, “Facing Scrutiny, Google Steps Up Lobbying,” WSJ Digits Blog, July 22, 2009; see also “The Google Books Project: An Antitrust Case in the Making?,” WSJ Law Blog, July 24, 2009.

The European Commission has scheduled a hearing on September 7, 2009 to consider “the effect of the Google Book US Settlement Agreement on the European publishing sector, European authors, European consumers and society at large.” See also Reuters, EU sets hearing over Google books deal, July 20, 2009; Jessica E. Vascellaro, “EU Calls Google Books Hearing, House Ponders One,” WSJ’s Digits Blog, July 20, 2009.

There are definitely upsides to a digitizing project of this nature – public access to out-of-print works (whether still protected by copyright or not) could be a great thing. These books might not be available at your local library, and indeed you might not find out about them through your normal channels of research. If they are out of print, you might have a hard time finding them through used-book sellers or online retailers – assuming you knew to try to find them. Making these books available to the public again, along with the ability to have these books appear in search results relevant to the content of these books, would provide a great social benefit. See also William Echikson, Opinion Europe: “Reviving Lost Books,” Wall Street Journal, July 21, 2009; Philippe Colombet, “Sharing Public Domain Books,” Inside Google Books Blog, Aug. 18, 2009.

The downsides are significant, however, and should not be ignored. Principally among them is the possibility that copyright holders’ rights would be completely disregarded, eliminating their ability to control the creation of derivative works (such as a digital copy of a book previously available only in print) and the further distribution of their works. The settlement attempts to address these copyright concerns, but has yet to be approved by the Court. The Authors’ Guild Complaint makes the case for the “downsides” rather clearly. See Authors’ Guild v. Google, No. 05 CV 8136 (SDNY).

The Court apparently has rescheduled the hearing to review the settlement for October 7, 2009. See Google Book Settlement FAQs (noting that the hearing was originally scheduled for June 11, 2009). It will be very interesting to see whether the Court approves the settlement and/or whether the fair market system and pure competition will intervene to provide alternate means to access this information without having to rely solely on Google.

Background

Google originally proposed to undertake the Google Print Project (including the section now called the Google Book Project) without seeking permission from individual copyright holders, or arranging for any payment of royalties, citing the public’s keen interest in having rare and typically unavailable books digitized and accessible. In public statements – including ones made during a panel discussion before the ABA’s Intellectual Property Law Section in April 2006 – Google defended its decision to structure the plan as an “Opt Out” plan (requiring the publishers and authors to make the affirmative step to withdraw from the program, instead of seeking their permission/participation in advance) based on the significant cost involved in trying to locate in the individual rights holders and obtain their agreements to participate. For a competing viewpoint, however, see “Googling Copyrights,” Wall Street Journal, Oct. 3, 2005, at A16 (“Getting permission from all the rights-holders for such an ambitious undertaking would undoubtedly be time-consuming and bothersome, but no one said that storing and making money off someone else’s copyrighted material was or should be easy.”).

The Authors’ Guild Lawsuit

On September 20, 2005, The Authors’ Guild filed a lawsuit against Google, attempting to block Google’s efforts to launch its Library Project. Authors’ Guild v. Google, No. 05 CV 8136 (SDNY)(“Compl.”). According to the Complaint, a subset of this Project was the Print Project. Compl. ¶ 19. (This is the component now known as the Google Book Project.)

The Authors’ Guild alleged that Google was engaged in willful, “massive” copyright infringement [Compl. ¶¶ 3, 5] and sought damages, injunctive relief and declaratory relief with respect to the infringement that Google had performed prior to the filing of the suit, and declaratory and injunctive relief for “planned unauthorized commercial use of the Works” going forward after the suit was initiated. Id. ¶ 6. The commercial use at issue here was Google’s offering of advertising space on search result pages for a fee to commercial entities, while providing the search engine itself for free to Internet users. Id. ¶ 16. Thus, Google would benefit from the use of the copyrighted text through advertising revenue, but did not plan to pay copyright owners for its use of the copyrighted text. (98% of Google’s earnings at the time apparently were made up by advertising revenue. Id. ¶ 17.)

Note that the “use” at issue in the Complaint was not only providing certain amounts of text in search results to users of Google’s search tools, but also to the scanning, OCR’ing, and maintaining the full text in its database to be searched using Google’s search engine. See id. ¶ 31; see also Opinion, “Googling Copyrights,” Wall Street Journal, Oct. 3, 2005, at A16 (“But the mere activity of digitizing and storing millions of books – many thousands of them under copyright – without buying any of them raises a serious legal question, regardless of how much of that content Google later makes available at any one time or to any one user.”). The first use of the text would be visible to the public – the second would not be, but nonetheless provides value to Google. Indeed, if Google did not have the full text copied into its database, it would not be able to identify this text as being relevant in response to a search request made by a user of the search engine. As a result, the copyrighted book would not have appeared in the search results if Google had not copied the entire text into its database.

By the time the Complaint was filed, Google had entered into contracts with University of Michigan (subject of the suit) [Compl. ¶ 23a] and Harvard, Oxford, Stanford and N.Y. Public Library (scanning had not started at the time of the filing of the Complaint, but these libraries were the subjects of the requested injunction) to digitize all books in their collections – both works in the public domain and those still protected by U.S. copyright law. Id. ¶ 32. By now, however, Google’s list of library partners has greatly expanded: Google’s site presently lists several foreign libraries as well as a few additional American ones: specifically, Columbia University, Cornell University Library, Princeton, University of California, University of Texas at Austin, University of Virginia, and University of Wisconsin – Madison.

The Settlement

On October 28, 2008, the Author’s Guild reached a settlement with Google over Google’s plans to digitize entire library collections – regardless of whether the books were still protected by copyright or had fallen into the public domain. (The Publishers also reached a settlement of their case, The McGraw-Hill Companies, Inc. v. Google Inc., 05 Civ. 8881 (JES), filed on October 19, 2005 and alleging similar allegations; their settlement agreement appears as Attachment M to the Author’s Guild Settlement Agreement.)

In connection with the settlement, the parties issued a Notice announcing the settlement. The Authors’ Guild also summarized the terms of the settlement and provided a summary of the “benefits” of the settlement relating to out-of-print books. The Settlement Administration Web Site describes the impact of the settlement on various rights holders and provides copies of the relevant filings and instructions to copyright holders of “books and in writings included in books and other works published on or before January 5, 2009” about how to participate in the settlement. Rights holders can file their claims through the site as well.

Google published its own summary of the terms of the settlement, calling it a “groundbreaking agreement with authors and publishers.”

Missing from the Settlement – Addressing Privacy Concerns

On July 27, 2009, the Center for Democracy and Technology (a public interest group focused on the Internet) released its recommendations for incorporating privacy protections into the Book Registry and the search engine that it recommends Google implement when it puts the settlement into practice. See CDT’s Report on Google Book Service.

The report recognizes that the Settlement addressed only issues of copyright and appropriate compensation/attribution to the rights holders and does not address any concerns of privacy of those people who may be using the search engine to find relevant books. However, now that the Settlement may be on the verge of finalization, thereby implementing procedures by which information about the public’s use of the database could be captured, it is critical to ensure that only the minimal necessary information is collected about users. While the technology exists to permit Google to collect substantial personal information about users (and the other sites they visit, the books they have searched and/or read online, the books they have purchased through other sites, etc.), restrictions should be put into place to protect individuals’ privacy rights.

The report is particularly illuminating and well-written. It provides an alternate view (very carefully researched and written) to the basic concept that having these works accessible in digital form to anyone around the world, without regard to whether the local library owns a printed copy, is priceless. Access is not the only consideration; privacy for those seeking to use this new medium should be protected as well.

Additional Links of Interest

Jonathan Band, “The Google Print Library Project: A Copyright Analysis,” E-Commerce Law & Policy (August 2005) at 2

“Authors Sue Google, Challenging Use of Works in Google Library,” BNA’s Patent Trademark & Copyright Journal, Sept, 23, 2005

The Authors’ Guild Google Book Settlement Resources

Google’s Legal Perspectives’ Site

Google’s Tips on Improving Search Results – how to maximize the search results using Google’s tools

The Official Settlement Site

Wikipedia’s Chronology regarding Google Book Project