Cases and Court:
- The Authors Guild v. Google, Inc. (S.D.N.Y.).
- The McGraw-Hill Companies, Inc. v. Google, Inc. (S.D.N.Y.).
Since 2005, Google has digitally scanned over 10,000,000 books from various libraries, indexed them in its search database, and for those books under copyright and not part of its Partner Program, displaying so-called “snippets” of their content – up to three portions each no more than 8-12 lines in length – without permission from the copyright owners. As a result, a group of authors and publishers filed suit, now as a class action, for copyright infringement. Google has responded with several defenses, including the assertion that everything it is doing is a fair use under Section 107 of the Copyright Act.
Last October, the parties announced a proposed settlement of the case. The settlement agreement is over 300 pages and quite complex. It has many supporters as well as critics. Objections to the settlement can be filed up until September 4, 2009. On October 7, 2009, Judge Denny Chin will hold a hearing on whether the proposed settlement is “fair, reasonable, and adequate” to the class members.
What’s at stake:
Initially, the key legal issue at stake was fair use. Google has cleverly designed its book search strategy to follow a line of fair use cases (Sega v. Accolade,1 Sony v. Connectix,2 Kelly v. Arriba Soft,3 Perfect 10 v. Amazon.com4 ) that allowed numerous unauthorized reproductions of entire copyrighted works, even for commercial gain, where the purpose of the reproductions was to assist in “information location” activities, i.e., helping increase access to knowledge, as opposed to “aesthetic” or entertainment purposes. Under the first fair use factor, these courts found such a purpose to be “highly transformative” and thus fair.
The authors and publishers, on the other hand, claim that Google infringes their copyrights because as rightsholders, they have a right to license their works for scanning and indexing purposes and thus, under the fourth fair use factor, Google is harming the market value of their works.
Since the proposed settlement was announced, however, a host of other issues have been raised for the court to consider. These include the privacy5 of book readers,6 the effect on competition in the market for digital books and book access,7 and the potential impact on fair use precedent resulting from Google’s settlement payments for its scanning, indexing, and snippet display activities. In particular, there have been strong fears expressed that the GBS settlement could determinatively shape the market for digital delivery of books before that market even gets off the ground. Add in the emergence of Amazon’s Kindle eBook reader and efforts such as the Open Book Project and the European Digital Library Project, these questions loom large. Whether or not such concerns are valid, however, has yet to be proven.
Regardless of whether or not Judge Chin approves the settlement, this case is certainly one to watch. If approved, it will dramatically impact the way books are accessed online and the copyright, competition, and privacy norms associated with such access. If rejected, there is a good chance that there will either be a revised settlement agreement for the court to consider or else a determination of a critical fair use issue affecting the future of copyright digitization efforts in the United States.
Note: Our friend and co-editor, Joseph Gratz, is counsel for Google, Inc. in this case, but took no part in writing this summary.
- Eric Goldman, Google Book Search Settlement Comments (A Little Late), Technology & Marketing Law Blog (Nov. 27, 2008).
- James Grimmelmann, Principles and Recommendations for the Google Book Search Settlement, The Laboratorium (Nov. 8, 2008).
- Fred von Lohmann, Google Book Search Settlement: A Reader’s Guide, Deeplinks Blog (Oct. 31, 2008).
- Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993). [↩]
- Sony Computer Ent’mt, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000). [↩]
- Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). [↩]
- Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007). [↩]
- CDT, CDT Releases Privacy Recommendations Report for Google Book Service, Center for Democracy and Technology (Jul. 27, 2009). [↩]
- Cory Doctorow, Lethem and EFF on why Google Book Search needs privacy guarantees, Boing Boing (Aug. 12, 2009). [↩]
- Randal C. Picker, The Google Book Search Settlement: A New Orphan-Works Monopoly?, J. of Competition L. & Econ. (forthcoming). [↩]