Google Books Settlement

I Google Book Settlement 

Nowadays, digitisation of library material has become one of the most important issues in making knowledge available. According to Google, the Google Books project, formerly called Google Book Search was launched to protect knowledge.[1]  Sergey Brin, Co-founder and President of Technology for Google, alleged that most of the academic works are only preserved for a prestigious researcher where they ought to be available to the wider public. He added that those works often go out of print in a couple of years and gradually disappear from the world with the rights holders impossible to track down. They fall into a ‘literary black hole’ as he described.[2] Therefore, Larry Page, the co-founder of Google, has first proposed to digitize all books 10 years ago, before Google was even founded.[3] That was of course an ambitious project and Google faced a difficult start with the lack of help. However, when the project is finally launched copyright issues arose and Google began their battle on the 7-years-and-ongoing law suit led by the Authors Guild and the Association of American Publishers.

A    The Project

The Google Book Search is a collaboration between Google and major research libraries to digitise their collections. Depending on the copyright status and licence of the book, either some parts of or the entire book is available to the reader. Through the service, the entire text of books whose copyright has expired, 20 percent of copyrighted books that Google has licensed from the publishers, and only snippets copyrighted books without license are made available for free.[4] As Ken Auletta, the author of Googled: The End of the World as We Know It has commented, ‘[The project] was very much consistent with Larry’s idealism that all of the world’s information should be made available freely.’[5] The project would not only be able to let libraries, schools, researchers and disadvantaged groups have access to far more books, with digitisation, it would also provide increasing access for individuals with disabilities via Braille and audio formats.[6]

 

B Copyright Infringement

Copyright issues have inevitably arisen. The Authors Guild and the class members in The Authors Guild et al. v Google Inc. made the challenge that through ‘the scanning of books and display of “snippets” for online searching’ Google had infringed copyright as they did not obtain permission.[7] The authors seek damages and injunctive relief. Google claims that their action was fair use under § 107 of the Copyright Act in the US.[8] According to the statute:

“the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”[9]

The deciding factors of copyright infringement includes ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole’ and ‘the effect of the use upon the potential market for or value of the copyrighted work’.[10] Google argues that the “snippets” made available are neither substantial nor do they cause any impact on the market value of the original work. Unfortunately, the Court did not decide on this issue. However, the Court commented that it was important that Google did not scan the books to make the full text available nor available for purchase as Google ‘would have no colourable defence to a claim of infringement based on the unauthorised copying and selling or other exploitation of entire copyrighted books.’[11] Therefore it is important that the collection is not extensively available nor used for commercial purposes.

 

C Settlement

As the parties negotiated, Google eventually proposed the first settlement in 2008. The settlement was however objected by an overwhelming number of members of the class party. The document in concern is the Amended Settlement Agreement.[12] The issue presented to the Court was whether the ASA is ‘fair, adequate and reasonable’.[13]

The ASA

According to the summarisation of the Court, under the ASA, Google is authorised to:

(1)   continue to digitise Books and Inserts

(2)   sell subscriptions to an electronic Books database

(3)   sell online access to individual Books

(4)   sell advertising on pages from Books, and

(5)   certain other prescribed uses[14]

The rights above are granted to Google non-exclusively and the right to authorise others including competitors of Google to use the books in any way is retained by rightsholders. Google also promised to pay 63% of all revenues and establish a Book Rights Registry (The Registry) to administer the distribution of revenues.[15] The Registry would be managed by a board of equal number Author Sub-Class and Publisher Sub-Class representatives and create an ‘"independent" Unclaimed Works Fiduciary to represent interests with respect to, and assume responsibility for. certain decisions pertaining to unclaimed works, including pricing and book classification.’[16] In addition, the ASA require the Class members to opt out of the deal or the ASA would automatically apply.[17]

 

D The Objections

After the ASA was released, approximately 500 submissions were filed and the vast majority objected to it.[18] For our purpose, the major objection includes the scope of relief under Rule 23 and copyright concerns.[19]

1 The Scope of Relief under Rule 23

According to the Court, the ASA should be divided into two parts. The first part settles past conduct and releases Google from liability from past infringements and the second part would transfer certain rights of Google in exchange for future and ongoing arrangements. Those arrangements include the sharing of future proceeds, and it would release Google (and others) from liability for certain future acts.[20]

The Court has decided the scope of the arrangement in the second part exceeds what the Court may permit under Rule 23. ‘As articulated by the United States, the ASA "is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation.’[21] Although the Court believed that the parties were ‘seeking in good faith’, it shall not ‘shall not abridge, enlarge or modify any substantive right.’[22]

First, the Court has found that ‘[t]he questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties.’[23]

Second, the scope of the claims would exceed the scope of the pleadings as the case was originally brought to challenge the use of “snippets” and never about making the full book available. ‘The case was about the use of an indexing and searching tool, not the sale of complete copyrighted works.’[24] However the ASA would grant Google the full access to copyrighted works that they would not have otherwise. Moreover, it would also grant Google control over digital commercialisation of millions of books giving them an unfair advantage from their competitors. The Court declined to give Google such a ‘shortcut’ and concluded that the claims is out of the "the general scope of the case made by the pleadings."[25]

 

2 Copyright Concerns

Some of the objectors contend that the ASA's opt-out provisions would grant Google the ability to expropriate the rights of copyright owners who have not agreed to transfer those rights as the Copyright Act provides:

When an individual author's ownership of a copyright, or any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under the copyright, shall be given effect under this title, except as provided under title 11.[26]

The authors argued that the section was intended for governmental suppression of copyrights and that it does not apply to private parties. The court agreed and found the idea that court-approved agreement releasing the copyright interests of individual rights owners who have not voluntarily consented to transfer troubling.

In relation to that, counsel for Amazon argued: "[T]he law of the United States is a copyright owner may sit back, do nothing and enjoy his property rights untrammelled by others exploiting his works without permission."[27] It is disturbing that under the ASA if a copyright owner takes no action, they would lose their rights.

The Court also noted that the "Copyright owners who are not aware that the [ASA] affects their interest unknowingly leave Google to decide how their books are used."[28]

Among the objectors, there is a granddaughter of a deceased writer who self-published a book called Dust and Snow. She pointed out that if Google scans it, it would be impossible for them to locate the publisher and they would treat it as ‘orphaned’ which automatically grant Google the ability to deal with it free of charge. The book is clearly not orphaned in the family’s view and she questioned what gives Google the right to take over the book’s copyright.[29]

The Court has found that many authors of unclaimed works would share the same concern and it is against the spirit of the law to require the rightowner to come forward and claim the right rather than sit back and enjoy. The Court hence agreed with the objectors.

E Conclusion

The Court has rejected Google’s ASA.[30] The case has discussed on issues of ownership of orphaned works and made clear that it is not up to a unilateral arrangement to decide upon it. Although the case is ongoing, it is clear that the community support the idea behind the project but whether Google can strike a deal remains unclear. Hopefully the conclusion of the arrangement in the future helps us to preserve knowledge while remaining fair to copyright holders.

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[1] Sergey Brin, A tale of 10,000,000 books (10 October 2009) Google Official Blog <http://googleblog.blogspot.com.au/2009/10/tale-of-10000000-books.html>

[2] Ibid.

[3] David Drummond, New chapter for Google Book Search (29 October 2008) Google Official Blog <http://googleblog.blogspot.com.au/2008/10/new-chapter-for-google-book-search.html>

[4] Miguel Helft, Judge Rejects Google’s Deal to Digitize Books (22 March 2011) The New York times <http://www.nytimes.com/2011/03/23/technology/23google.html?_r=1>

[5] Ibid.

[6] Authors Guild et al. v Google Inc,. 770 F. Supp. 2d 666, [4] (S.D.N.Y., 2011).

[7] Ibid [5].

[8] Copyright Act of 1976, 17 USC §107 (1976).

[9] Ibid.

[10] Ibid (3-4).

[11] Authors Guild et al. v Google Inc,. 770 F. Supp. 2d 666, [28] (S.D.N.Y., 2011).

[12] Ibid [1].

[13] Ibid.

[14] Ibid [7].

[15] Ibid [8].

[16] Ibid.

[17] Ibid [9].

[18] Ibid [11].

[19] Ibid [12-15].

[20] Ibid 677.

[21] Ibid.

[22] Ibid 678.

[23] Ibid [25].

[24] Ibid [27].

[25] Ibid [29].

[26] Copyright Act of 1976, 17 USC §201(e) (1976).

[27] Authors Guild et al. v Google Inc,. 770 F. Supp. 2d 666, [37] (S.D.N.Y., 2011).

[28] Ibid.

[29] Ibid [38].

[30] Ibid [51].