Google Book Settlement

[wolfinthewood]

For quite a long time I paid very little attention to the Google Book Settlement. I had formed the erroneous impression that it had very little to do with me, as a UK author.

Early in May I read an article in Booksquare and began to be more enlightened. After this, I did a lot of digging on the web, and the more I found out the more concerned I became. But Life introduced some distractions, and then Work demanded its pound of flesh, and I have only now had a chance to return to the matter.

Over the next few days, I intend to make several posts about the Book Settlement. This first one is a resumé of the background to the whole affair: how Google Book Search operates (many people who use it have only sketchy ideas about where the texts come from), how the law suit came about, and how matters have developed since it was brought. The tone is somewhat formal, since it is closely based on a briefing document I am drafting to send to my MP, MEPs, and various other parties.

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Google Book Settlement: the Background

Google Book Search allows users to search the full text of a large and still growing corpus of digitised books. The books in the corpus come from two sources: the Partner Programme, under which publishers and authors submit their books for inclusion in the service as a form of promotion, and the Google Library Project, under which the books are supplied for scanning and digitisation by a number of partner libraries.

[see http://books.google.com/intl/en-GB/googlebooks/book_search_tour/index.html
and http://books.google.com/googlebooks/library.html]

Some of these libraries, notably the Bodleian Library at Oxford and Harvard University Library, have only permitted Google Inc. to digitise books from their collections that are out of copyright and in the public domain, but a number of US institutional libraries have provided for scanning very large numbers of books that are still in copyright. No attempt has been made hitherto to seek permission for this from the owners of the rights in these books.

At present, Google Book Search allows its users full view and downloads of the digital files of many (not all) books that are in the public domain, ‘limited preview’, or in some cases full view, of books digitised under the Partner Programme by arrangement with the publishers, and ‘snippet views’ of fragments of text from many (not all) of the in-copyright works that have been digitised under the Library Project.

Google Inc. has always argued that its digitising of in-copyright works and provision of ‘snippet views’ of them through Google Book Search constitutes ‘fair use’ under US copyright law. It continues to hold to that view.

[See for example http://googleblog.blogspot.com/2005/09/google-print-and-authors-guild.html;
also the Preamble to http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf]

The Library Project was launched in December 2004. In June 2005 the Association of American Publishers (AAP) called on Google Inc. to stop scanning works copyrighted to its members for six months, pending discussions.

[http://advocate4libraries.blogspot.com/2009/05/deal-or-no-deal-will-there-be-google.html;
http://www.publishersweekly.com/article/CA609261.html]

In September 2005 the Authors Guild (an organisation representing about 8 thousand US authors) began class-action litigation against Google Inc. alleging that the unauthorised reproduction of works not in the public domain constituted ‘massive copyright infringement’ and noting that the company had announced plans to display digitised works on its website alongside paid advertisements.

[http://www.authorsguild.org/advocacy/articles/settlement-resources.attachment/authors-guild-v-google/Authors%20Guild%20v%20Google%2009202005.pdf §§ 3, 4]

In October 2005 five major US publishers, co-ordinated by the AAP, began litigation against Google Inc. alleging that the Google Library Project was a commercial project and that the company was ignoring the rights of copyright holders ‘in favor of [its] own economic self interest’. They stated that though Google was aware that these publishers wished them to seek permission before including their copyrighted books in the Google Library Project, the company, claiming ‘fair use’, maintained that it did not need to do this. The publishers asserted that they had been forced to bring the action ‘to protect and prevent ongoing and imminent harm to the copyrights in their books’.

[http://www.authorsguild.org/advocacy/articles/settlement-resources.attachment/mcgraw-hill/McGraw-Hill%20v.%20Google%2010192005.pdf]

In October 2008 AAP, the Authors Guild and Google Inc. announced a legal settlement. This settlement is set out in a document of 141 pages, with a further 15 documents attached. The full set may be accessed on this website: http://www.googlebooksettlement.com/intl/en/.

The progress of the case so far may be briefly summed up as follows:

In 2005 the plaintiffs took Google to court to compel it to stop scanning in-copyright books without the permission of the copyright-holders. Three years later the parties arrived at a settlement agreement under which Google is allowed not only to continue scanning books without troubling to obtain permission, but also to exploit the scans commercially in the US, by methods that include running advertisements alongside book texts, selling institutional and individual access to its corpus of digitised works, and even by selling e-books and print-on-demand copies.

The case was brought as a class action, with the result that if the settlement agreement is accepted by the court, it will become legally binding under US law not only on the publishers and authors represented by the plaintiffs, but also on an extremely large number of publishers, authors, and authors’ heirs and assigns worldwide.

The Google Book Settlement received ‘preliminary approval’ by the court in November, but since then opposition to the deal has been growing.

One more background note: at the end of October 2008, Google announced that it had then scanned and digitised about 7 million books, and that it considered that it was ‘just getting started’. In 2004 the stated target was 15 million books, but since that time it has been revised upwards.

[http://googleblog.blogspot.com/2008/10/new-chapter-for-google-book-search.html; http://www.libraryjournal.com/article/CA491156.html; http://www.weeklystandard.com/Content/Public/Articles/000/000/014/431afruv.asp]

A news report on 3 November cites an official source at Google for the statement that more than a million of the books digitised had come from publisher partners, with the rest coming from libraries. Of the books digitised from libraries, over a million are public domain, and between 4 and 5 million are works in copyright, most of them described as ‘out of print’.

[http://newsbreaks.infotoday.com/NewsBreaks/The-Google-Book-Search-Settlement-The-Devils-in-the-Details-51429.asp]

Since that point Google has continued to scan and digitise books in the collections of its partner libraries. A proportion of these books are in the public domain, but the great majority are still in copyright.

A large number – how many, it is not presently clear – are by authors who are not US nationals. In this connection it is may be noted that Google is touting greatly increased access to books in foreign languages as one of the anticipated benefits of the Settlement for users of Google Book Search in the US.

[http://googlepublicpolicy.blogspot.com/2009/04/google-book-search-settlement-will.html]

Some of the books that Google has digitised, including one that was edited by me, have never been published or distributed in the United States for reasons to do with licenses and territories. It is not known how many works fall into that category.

[Coming next: How the Google Book Settlement affects European authors and rights-holders]