Google Book Search Settlement Agreement

The Google Book Search settlement agreement is the settlement agreement reached in the United States District Court for the Southern District of New York after the Authors Guild and the Association of American Publishers sued Google in 2005 citing "massive copyright infringement" related to its Google Books Library Project. The settlement will provide an avenue for copyright owners of out of print books to submit claims to Google, from the Book Rights Registry, and allow Google to sell advertisements and digital versions of these books, while paying 63 percent royalties to the copyright owners.

The Court was to decide whether to approve the settlement and bring it into force at the Fairness Hearing to be held on October 7, 2009. However, on September 24, the hearing was adjourned on the grounds that the settlement was still undergoing changes and the court needs to rule on the final document. Neither party opposed this motion.

History

On 20 September 2005, the Authors Guild submitted a class action lawsuit against Google Inc. arguing that its Library Project involved "massive copyright infringement" by creating digital copies of copyrighted works for commercial use.

In response, Google temporarily suspended the scanning of copyrighted works to allow for changes to its Print Publisher Program and allow copyright owners to submit lists of books they wish to be excluded.

On 19 October 2005, Association of American Publishers filed another lawsuit against Google for copyright infringement, seeking injunctive relief.

Google responded that it is complying with the guidelines of fair use doctrines and "does not scan a book if the holder of the copyright notifies Google of its objection to scanning the particular book."

In 2006, French publisher La Martinière Groupe sued Google for piracy and won in 2009, a decision Google will appeal. WBG, a German publisher, began a suit against Google for infringement, but later dropped it after the court informed them they were unlikely to succeed.

Settlement

In October 2008, Google signed a settlement with the Author’s Guild for $125 million. A share of the settlement, $34.4 million dollars, will go towards the funding of the Book Rights Registry, a form of copyright collective that will pay copyright owners a portion of the profits made by Google Books, and, potentially, other companies seeking to make use of the books.

Google created a Google Book Settlement web site that went active on 11 February 2009. This site is for authors and other rights holders of books that are under copyright but out of print. They can submit a claim by 5 June 2010. These rights holders will receive a one-time payment of $60 per full book, or $5 to $15 for partial works, plus 63 percent of all advertising and e-commerce revenues associated with their works. In return, Google will be able to index the books and display snippets in search results, as well as up to 33% of each book in preview mode. Google will also be able to show ads on these pages and make available for sale digital versions of each book.

Controversy

Harvard University Library, which had been participating in digitizing the books, has threatened to end its partnership with Google should the company continue its policy of scanning books that are still under copyright. Siva Vaidhyanathan, associate professor of Media Studies and Law at the University of Virginia, has argued that the project poses a danger for the doctrine of fair use, because the fair use claims are arguably so excessive that it may cause judicial limitation of that right. Because Author's Guild v. Google did not go to court, the fair use dispute is left unresolved.

Google licensing of public domain works is also an area of concern. Google apparently is claiming a restrictive 'No-Commercial use' term in respect of the PDF electronic versions it provides, as well as using digital watermarking techniques with them. Some published works that are in the public domain, such as all works created by the U.S. Federal government, are still treated like other works under copyright, and therefore locked after 1922.

Among the most important criticisms, is that the settlement, if approved, will "give Google control over the digitizing of virtually all books covered by copyright in the United States." Others consider antitrust concerns over Google Book Search to be misplaced. In a journal article, MIT Professor Jerry A. Hausman and Criterion Economics Chairman J. Gregory Sidak conclude that the service will be unable to exercise market power. Hausman and Sidak believe that Google Book Search should, on net, yield a significant gain in consumer surplus.

Additionally, Google will be able to create a "content management system" with their scans as a result of the settlement and will have the power to remove inappropriate books the same way that it is able to remove inappropriate movies from YouTube. Some fear that this could lead to censorship and that there is public interest in protecting the scans from being buried behind Google's ranking system.

Some have claimed that before the settlement is final, other concessions from Google should be obtained to ensure that Google's potential as the global big-box library provide privacy assurances comparable to those enjoyed by visitors to traditional libraries.

Prominent technology, publishing, library and author groups have formed the Open Book Alliance works to counter the "scheme to monopolize the access, distribution and pricing of the largest digital database of books in the world."

Brewster Kahle, the co-founder of the Internet Archive and Open Content Alliance has been critical of the proposed settlement, saying "Lets free the orphans, not have them pass from their legal limbo into a life controlled by Google"

In December 2009, science fiction and fantasy author Ursula K. LeGuin announced on her website her resignation from the Authors' Guild over the settlement, claiming the leadership of the Guild had "sold us [its members] down the river" and that the settlement threatened "the whole concept of copyright."

Open Book Alliance

Settlement 2.0 Baseline

The Open Book Alliance has released a framework for "Settlement 2.0".

Settlement 2.0 Baseline: — The settlement must not grant Google an exclusive set of rights (de facto or otherwise) or result in any one entity gaining control over access to and distribution of the world’s largest digital database of books. Authors and other rights holders must retain meaningful rights and the ability to determine the use of their works that have been scanned by Google. The settlement must result in the creation of a true digital library that grants all researchers and users, commercial and non-commercial, full access that guarantees the ability to innovate on the knowledge it contains. All class members must be treated equitably. The settlement cannot provide for competition by making others engage in future litigation. Congress must retain the exclusive authority granted by the U.S. Constitution to set copyright policy. All rights holders impacted by the settlement must have a meaningful ability to receive notice, understand its terms and opt-out. The parties that negotiated the settlement must live under the terms to which they seek to bind others, rather than their own separately negotiated arrangements.

Settlement revision response

Google waited "until the last legal minute" to release a revised settlement by its November 13 deadline. However, dissatisfaction lingers, the Open Book Alliance said, "Fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners...by performing surgical nip and tuck...[they] are attempting to distract people from their continued efforts to establish a monopoly over digital-content access and distribution."

The Open Book Alliance outlined its major concerns;

• The settlement still allows Google to purchase a monopoly on digital books.
• Authors must still opt-out of the agreement even if they have not given their consent to be included in the deal.
• Google’s claims regarding the Unclaimed Works Fiduciary are misleading and simply false.
• Consumer privacy has NOT been protected or improved.
• Academic libraries and independent researchers are still at the mercy of pricing from Google’s one stop book shop.
• Instead of negotiating with stakeholders, Google cuts them out.

The Public Index

The Public Index is a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School. They are a group of professors, students, and volunteers who believe that the Google Book Search lawsuit and settlement deserve a full, careful, and thoughtful public discussion.

Bibliography

• Grimmelmann, James (April 2009), "How to Fix the Google Book Search Settlement", Journal of Internet Law, vol. 12, no. 10 (CC-BY)
• Jerry A. Hausman and J. Gregory Sidak, Google and the Proper Antitrust Scrutiny of Orphan Books, 5 Journal of Competition Law & Economics 3 (2009)
• Amy Goodman (Sep 29, 2009). "Scanning the Horizon of Books and Libraries". truthdig.

External links

• C-SPAN Booktv: A Tale of the Google Book Settlement and the Public Interest: Conclusions on the Competitive Elements
• American Society of Journalists and Authors - statement
• Authors Guild v. Google - Settlement Resources Page
• Google Book Search Settlement administrative site
• Google Book Settlement
• National Writers Union Book Division
• The Public Index, a site to study and discuss the proposed Google Book Search settlement.
• Google Book Settlement (Pro and Con)
• Open Content Alliance
• Open Book Alliance