Google Books I - To Settle or Not To: That is the Question

Today is a critical day for Google, seemingly controversy’s favorite online child these days - from China to EU to Buzz’s privacy violation; most importantly, Google will be defending its Book Settlement case, and participating in the Fairness Hearing today. This suit begun in 2005 will have far reaching consequences for Google and tremendous impact on all of us since it is about content control; directly impact the Indian publishing industry as well.

What is ‘Google Books’?
Google Books is an ambitious initiative intended to scan, digitize and create a repository of all published books and make them available online. This project will provide the public benefit of digital access to all works published so far; Google in turn will gain an indomitable advantage in the book search market and its algorithms will have a huge first mover advantage over enormous content.

Google announced partnerships with key public and University libraries, from Stanford to Oxford for its goal of making over 15 million books available under this initiative.

Google Books – with over seven million books scanned so far – was hailed for facilitating phenomenal reader access (especially, to rare and out-of-publication or orphaned books, where authors’ heirs are no longer traceable etc.) (For Pro-views, click here)

Copyright & Term
A vast number of these books were however not legally permitted to be copied, distributed etc. protected as they were by copyright. Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work and copyright lasts for a certain time period after which the work is said to enter the public domain.

Copyright term varies depending upon country of first publication, and generally extends for a period after the author’s life. In other words, author’s lifetime + 60 years in India for instance. (See Sec.22 of the Copyright Act (PDF version). For other countries, click here.)

Publishers’ Suits
Thus, world over, Publishers & Author Guilds were up in arms against Google Books arguing that it infringed their copyright and straight away reduced their profits. Simply put, if free of charge portions were available, could be searched, read and used, how many would pay publishers to purchase books?

The Author’s Guild and several Publishers filed class action and civil suits for failure to respect copyrights and to properly compensate authors and publishers. (Authors Guild v Google: HTML version, PDF version and McGraw Hill v. Google, SD. N.Y. Case No. 05-CV-8881-JES. PDF version. Google’s responses are also available at Litigation History)

In the Settlement Ring: Round 1
The parties began negotiating toward a settlement, and initially, in 2008 proposed (a) establishment of a non-profit body for managing the revenues that Google would pay into it (generated from ad revenues from the registry) and (b) to only include in-print books after obtaining permission from publishers and authors.

For books already digitized, Google would provide for $ 60 compensation per principal work etc., which would be paid out of the initial $ 45 million fund that Google would set up (under the non-profit body.) (See Art II, 2.1(B) of Settlement Agreement proposed. The PDF versions of summary and full proposal are available online)

The Settlement Agreement proposed would become binding, enforceable only by court order, prior to which objections from interested parties etc. would be heard. During this phase, the US Dept of Justice (DOJ) provided several objections to the settlement including those received from several other national governments and affected foreign publishers.

Non-US Publishers’ Objection – Round 2
Several countries, especially France, Germany etc. objected to being extraneously subject to the settlement agreement entered into by US publishers/author guilds and Google. In Nov’08, the Settlement proposed was amended to exclude works published in all other countries save UK, Canada and Australia (whose publishers were impleaded and were represented in the suit.) (The summary of revisions is available online)

Feb 2010 Update - DoJ Objections
While appreciating the foreign work exclusion, the DoJ indicated that the revisions remained inadequate and objected that the Settlement proposed violates (a) copyright laws, (b) antitrust laws, and (c) is an incorrect usage of class action suits.

The DoJ’s argument may be summed up as:
The Settlement “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.” (DoJ Filing, Feb 4, 2010, p 2) But however, if the Court does conclude that Class Representatives may grant such wide ranging rights for forward looking business arrangements of the entire class, the court should consider additional safeguards. (See DoJ Filing, Feb 4, 2010, p23-25))

- VJ and Aarthi S Anand