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Google Book Search Lawsuit Settled, Fair Use Questions Remain : Settlement proposes Book Rights Regi

October 28, 2008 , ,

It's been announced today that Google has settled the massive lawsuits filed against it by a series of publishers and authors for its Book Search program. The program had scanned in tons of books into a database, making public domain works available online to the public, while providing a searchable database of copyrighted books that would display only snippets of text to the searcher. (The current text of the proposed settlement agreement is here.)

The lawsuit was based on the publishers' and authors' contention that Google was infringing their copyrights when it scanned copyrighted books from libraries into its database. This scanning made digital reproductions of the work, and displaying small snippets displayed the works—both of these being exclusive rights of a copyright holder. Google, on the other hand, argued that these activities were noninfringing or fair uses—since the searched database didn't harm the market for the original works, and the published snippets were short enough excerpts.

In any case, this settlement doesn't go to the merits of these arguments, meaning that anyone else trying to do what Google did will face the same legal battle all over again. Instead, the questions of law remain unsettled, the lawsuit goes away, and several other things happen:

  • Google pays out at least $45 million to copyright holders whose works were scanned and displayed without permission;
  • Google continues to scan works into its databases; public domain works are online in full; copyrighted, commercially available books won't be put online without permission; and copyrighted books that aren't commercially available will be online in “preview” form, with a few selected pages visible;
  • Users can buy access to the books that Google has digitized;
  • Institutions can buy access to the digitized out-of-print books from Google;
  • A cut of Google's revenue from these sales goes to copyright holders;
  • Google funds a registry, to be run by publishers and authors, that will distribute royalties from the digital use of books to rightsholders.

There's a lot to be debated in this settlement (and it should be noted that this is the agreement that the parties in the suit have agreed to—it still needs to be approved by the court), but let's first note what it doesn't do: make a determination as to what is or isn't fair use.

Depending on how you saw the merits of the case, and how confident you were in the court reaching the right decision, that can be good or bad. On the one hand, we don't have a federal court saying that scanning books is a per se fair use; on the other hand, we don't have a court saying that scanning is per se infringement, either.

This does mean that the financial and legal might of Google is no longer going to be aligned with libraries and archives that may wish to provide digital services that are technologically similar to Google's efforts. This will mean that further fair use fights for digital libraries start closer to square one than they would have otherwise.

But it doesn't prevent other digital innovators from making use of, or fighting for, their fair use rights. Nor, for the more cautious technologists, would it mean that they can't negotiate licenses with individual authors or industry groups.

But while the legal landscape isn't altered too much by the settlement, the practical landscape could be. Rightsholders and other potential plaintiffs might view this settlement as the model for all future relationships with digitization efforts—if Google pays for digitizing, why shouldn't everyone else? Such a landscape might make a plaintiff more likely to sue, although the results in court, ideally, shouldn't differ, with or without this settlement in place.

One of the things that this settlement will do, however, is include millions of authors in the body of works subject to Google scanning. Since the lawsuit was a class action, and the plaintiffs were certified as representing the whole class of affected people (that is, authors whose books are scanned as part of Google's library scanning program), an author who doesn't want to give up the right to sue Google or a library for the scanning program would have to opt out of the settlement agreement. For those authors who don't, the remaining remedy would be to contact Google and tell them not to display the work in the database. This may raise some hackles down the road—there's often problems surrounding the idea of a smaller group of plaintiffs presuming to speak for a much larger class of people. Hopefully, it won't stand in the way of increased access.

One of the interesting things about the settlement is how it draws the distinction between books that are in-print and out-of-print (actually, the lines in the settlement are most often drawn between being “commercially available” or not—a distinction worth noting for later discussion). This is an important distinction for practical matters of accessing works, but one not so explicitly present in copyright statutes (there is an extremely limited recognition of this difference in some of the section 108 library exceptions). As a practical matter, it seems much more reasonable to make a copy of a work if there's no way for me to obtain it from a bookstore. Yet this might not save me from being found an infringer under fair use, given a sufficiently litigious plaintiff and a sufficiently unsympathetic court. After all, even if there are no other copies of the book available, there's a potential market in licensing the right to make a copy of the book.

Which is why it's refreshing that this distinction is drawn at all in the agreement, and in what will be available to users. This sort of arrangement can be cited as a positive feature of licensing and the power of contract—the ability to draw distinctions that matter to the parties that the law doesn't recognize.

Of course, there are distinct drawbacks to contract, too. Contract is a two-way street, where each party gives up something of value to the other. But that means that contract isn't a town square or a commons; the interests of those not party to the contract are often ignored. Here, the large number of people outside the agreement—other potential digitizers, consumers, and authors who opt out of the settlement—will have to deal with some of those consequences.

One of the biggest of these is the creation of the Book Rights Registry. As set out in the settlement agreement, this is to be a non-profit organization, initially funded by $34.5 million from Google, that will administer licensing rights and disburse payments to authors and publishers who sign up. The idea is that Google will be able to get the rights to use authors' works from this Registry, and pay them for those rights, which will flow to the authors. This would seem to be available to anyone who wants to license the digital rights to the books, and not just Google.

In essence, this is sort of like an ASCAP, BMI, or SoundExchange for books—a convenient place to license works and immunize oneself from suit. Of course, that also can bring some problems with it—there's no shortage of complaints about existing rights management organizations from both licensors and members. One common complaint is how the organization deals with funds paid to it for artists that aren't members, or what happens to funds that aren't properly distributed. And the Book Rights Registry is a privately created entity, with no specific statutory restrictions upon it, the way that other rights management organizations tend to have. So it may be harder for a potential licensee to challenge royalty rates that it finds unfair.

Obviously, there's a great deal of nuance and detail in the 141 pages of the settlement (and the hundreds of pages of attachments); and there are further details in how the Book Rights Registry will be set up later. Further nuances are going to be present in how all of this interacts with libraries (those that do and don't already have deals with Google), other digitizers like the Open Content Alliance, authors and publishers who are and aren't represented by the plaintiffs in this case, and the general reading / library-going / Internet-using / book-buying public. The drama of this settlement may take up a bit of this week's already-busy news cycle, but its effects will be felt and analyzed far into the future.