Google Library Project: Opening the Door for Information or Closing Out the Rights of Authors?

The Google Library Project — a partnership between Google and several libraries whose purpose it was to make into digital format millions of books, giving libraries that provided books full digital copies for their own collections, and posting online small portions, or snippets of those works — raised many questions relating to copyright infringement and fair use under copyright law.  Indeed, authors of many of the books being reproduced brought a class action suit against Google.

An initial settlement agreement was proposed in October 2008. However, after preliminary court approval, concerns were raised about the agreement.

In November 2009, Google, the Authors Guild and the Association of American Publishers filed an amended settlement agreement in the case.  A fairness hearing was held on Feb. 18, but the judge has not yet ruled on whether to approve the settlement.  On April 8, legal experts discussed this unresolved settlement at a panel session during the ABA Intellectual Property Section’s 25th Intellectual Property Law Conference held in Washington, D.C.

The amendments proposed in the adjusted settlement aim to address objections made by the U.S. Department of Justice and copyright holders to the original proposed settlement agreement.  Many of the changes would have little direct impact on libraries. Still, the ASA significantly reduces the scope of the settlement because it excludes from the settlement class most books published outside of the United States.

Conference panelists discussed the Department of Justice’s concern over potential violations of Federal Rule 23 and antitrust issues.

As to Federal Rule 23, the department was concerned that the settlement gave Google and the Book Rights Registry too much control with respect to forward-looking business arrangements that went beyond the activities that originally sparked concern.  The department also had concerns as to whether the class was adequately represented and received adequate notice.

The agreement gives Google the right to make uses of unclaimed books, or orphan works.  Even if rights holders could license these digital versions of their works, there is no third-party entity with which to license them.  Thus, Google still has the advantage.

The original settlement was criticized for not adequately protecting the interests of rights holders who did not file ownership claims with the Book Rights Registry.  Proponents of the new agreement argue that the ASA has extended the rights of authors through many avenues. First, it extends until March 31, 2011 the deadline for rights holders to file claims for payment for works scanned by Google prior to May 5, 2009. Second, the agreement only permits the following three additional revenue models to be developed in the future:  Print on demand, file (i.e. PDF) download and consumer subscription.  Rights holders of claimed books and the unclaimed works fiduciary must be given advance notice of these new services, with the option to exclude works from those services.

Regardless of which side of the debate the panelists represented they agreed that, no matter the outcome of the Supreme Court’s decision, there is a strong chance that appeals will be made.

James McEwen, Stein McEwen, LLP in Washington, D.C. and June M. Besek, executive director, Kernochan Center for Law, Media and the Arts, Columbia Law School, served as moderators of the panel.   Joseph C. Gratz, Durie Tangri LLP; Joel Lutzker, Ocean Tomo, LLP; Mary E. Rasenberger, Skadden, Arps, Slate; Meagher & Flom; and Madelyn Wessel, associate general counsel, University of Virginia served as panelists.