This post is the first by a new guest contributor, Utah IP lawyer Nicholas Wells, who also blogs on IP here. I first blogged about the tiff between Google and “the writers” and the “the publishers” over the Google Books Library Project a long time ago, most recently in March of 2011. It’s not really all over, actually, and Nicholas has generously offered to explain it all here. Thank you, Nicholas!
It would have been fascinating to read the court opinion ending the lawsuit by a group of major publishers against Google. But we won’t get to do that. After seven years, the parties settled this month on undisclosed terms. The Google Library Project can continue to scan and make available books by the affected publishers. The publishers can choose to “opt-out” for any books they don’t want included, but for all that remain in the Project, Google can let users browse up to 20% of the contents. Those books will also be available for purchase through Google.
Both the publishers and Google called the settlement “pragmatic” and said that the settlement “reaffirms the rights of copyright holders.”
A separate class action suit led by the Author’s Guild is unaffected by this settlement. That class action suit remains the more interesting part of this story. (Indeed, James Grimmelmann, a professor of law at New York Law School, told the Chronicle of Higher Education that the settlement with the publishers was “one of the least-dramatic settlements I’ve ever seen.”) Still, Publisher’s Weekly called Google’s settlement with publishers a “huge win” as far as orphaned works—those books where the copyright holder can’t be identified and so Google can’t ask anyone’s permission. The “win” is for Google, not the authors of the orphaned works, because there is no one to “opt out” of the Google Library Project as to those works. They will remain part of the project and will be made available to the public—with proceeds from ad revenue and book sales going to Google, at least for the time being.
Still, that begs the question that everyone was asking when Google started the Google Library Project back in 2005: Can Google re-interpret copyright law by doing whatever they choose and then letting the courts or the affected parties fight about it after the fact? The obvious legal answer at the time was a resounding “No.” But the e-book world has changed a great deal since 2005. Witness Amazon’s statement in May 2012 that more Kindle e-books are purchased from Amazon than hardcover books. So in a sense, technology and the market ended up validating Google’s actions before the court had a chance to finish considering the matter. The publishers stopped worrying about whether e-books could make money, as Google had been telling them all along.
But not so with the Authors Guild. It seems that for them, this really is about the principle of the thing: Google should not be able to use an author’s copyrighted works without permission, hoping to ask forgiveness (i.e. negotiate a license) after the fact. Perhaps the Authors Guild will eventually negotiate a payment arrangement with Google, but I will be surprised if that happens. The entire concept of the Google Library Project, as presently constituted, simply rubs authors the wrong way.
While I tend to side with the authors, it’s also fascinating to consider how the public policy aspects of this will resolve themselves. It is copyright infringement, plain and simple, for Google to scan and make available online a copyrighted work. Google has relied on defenses such as Fair Use to justify its actions. Yet there is a valid public interest in having works made available that are otherwise “orphaned” or simply out-of-print. That public interest is not addressed in the current law, but it is addressed forcefully by Google’s out-on-a-legal-limb actions in 2005 when they launched the Google Library Project. My first reaction then was to assume that Google was pushing for a change in the Copyright Act to address these policy concerns. Perhaps Google got tired of waiting for Congress to act and so decided to resolve the suit with the publishers.
Assuming the Authors Guild doesn’t settle, their case will provide a great opportunity to see how the a federal court balances traditional views of copyright, current publishing market dynamics, and the competing public policy interests.
UPDATE: The latest from Judge Chin: For Google, a win.