Divide and Conquer: Update on the Google Books Lawsuit
Pike, George H., Information Today
This year will mark the seventh anniversary of the lawsuit pitting the Google Books project against a coalition of authors, publishers, photographers, and other copyright owners. Notwithstanding the years that have passed, a series of recent developments have kick-started the lawsuit from settlement talks back to the litigation process. However, those same developments suggest a number of directions the lawsuit could take, ranging anywhere from a quick dismissal of the case to years of further litigation that could ultimately restructure U.S. and worldwide copyright law.
Google Print Library Project
The basic history of the Google Books lawsuit is now well-known. In 2004, Google initiated what was then called the Google Print Library Project, entering into agreements with several large academic and public libraries to scan the libraries' books into Google's servers. Web searches using Google are also run through the book collection, and relevant book results are presented as "snippets," offering brief descriptions of the search terms and a few sentences from the book to provide context. While some books were already in the public domain and some publishers actually entered into agreements with Google, most of the books were scanned without obtaining permission from the copyright owners. Many of these books are so-called orphan works, books that are still under copyright protection, but the owner can no longer be identified or located.
Google was sued for copyright infringement by a host of players: first by The Authors Guild and several individual authors and then by The Association of American Publishers, along with several individual publishing companies that brought suit a few weeks later. Two other lawsuits garnered less publicity but weighed in with possibly equal or greater significance. The first was a lawsuit filed in the French courts by a number of French publishing companies in 2006, and the second was a suit filed by the American Society of Media Photographers, Inc., along with other photographer groups and individual photographers in 2010.
Using Fair Use Snippets
All of the lawsuits claimed that the project, now known as Google Books, infringed on copyrights owned by the various authors, publishers, and photographers. For its part, Google defended its actions, claiming that the copying and showing of snippets was a fair use of copyrighted material. The initial Authors Guild and publishers' suits were merged by the courts, and the photographers joined the suit later. The French suit proceeded separately in the French courts.
Famously, a settlement of the guild and publishers' suits was reached in 2008, which allowed Google to develop and to market the book database in return for payment of royalties to copyright owners. The creation of a registry was also mandated to manage the royalties, including holding royalties for copyright owners of potential orphan works. However, objections quickly mounted over what were seen as fundamental violations of owners' rights to determine the use of their copyrights, as well as the exclusive rights that Google would obtain under the settlement. Early in 2011, a federal court rejected the settlement, indicating that Google went too far in violating fundamental copyright law and too far beyond the original scope of the lawsuit, which had been over the use of snippets and not full-text books.
Opt Out Versus Opt In
While settlement negotiations resumed, it quickly became clear that another full settlement was unlikely. The court had rejected the "opt out" scheme that automatically included all works in the database, subject to an owner being allowed to opt out. The alternate "opt in" scheme would have only allowed the database to contain books for which permission had been sought and granted. Many observers did not believe that would provide enough economic return on Google's investment. …