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Settlement of Suit against Google Book Search Leaves Fair Use Issue Unresolved

Kim Dian Gainer, Radford University

Overview

The out-of-court settlement of two suits against a Google book indexing project is an example of the negotiations underway between copyright owners and new media in the absence of clearly defined legislative standards and judicial precedents.  Google claims that the indexing project did not violate provisions of fair use; copyright holders claim that the project did.  With the settlement, the question of whether such indexing was or was not fair use has been left unresolved.

Background

Google’s own account of its book indexing project traces the idea back to 1996, when, as graduate students, Google’s co-founders worked on a project funded by the Stanford Digital Library Technologies Project. The first concrete steps toward the project’s realization, however, date to 2002, when Google staff experimented with digitizing books and visited libraries where scanning projects were underway. Work on technical issues continued throughout 2003.  Then, in 2004, Google entered into an agreement with Oxford University’s Bodleian library to digitize its collection of nineteenth-century books.  These volumes were of course in the public domain.  Subsequent to this agreement, which was the foundation of the “Library Project”, Google entered into arrangements with research libraries at four additional institutions: Harvard University, the University of Michigan, Stanford University, and the New York Public Library.  Collectively, they offered access to fifteen million books (History of Google Book Search, 2009).  Significantly, not all these volumes were in the public domain.  While Harvard made available for scanning only out-of-copyright books, other libraries provided access to their entire collections (Hafner, 2005).

While negotiating with libraries, Google had also been working with publishers in order to offer a book indexing service called “Google Print”. By the end of 2004, Google had reached agreements with such publishers as Blackwell, Houghton Mifflin, Hyperion, McGraw-Hill, Pearson, Penguin, and Perseus, as well as with Cambridge University Press, Oxford University Press, the University of Chicago Press, and Princeton University Press (History of Google Book Search, 2009).  However, in spite of the willingness of these publishers to participate in Google Print, the separate Library Project drew protests from authors and publishers who objected to the scanning of copyrighted books without permission from the copyright holders.  In the case of books not in the public domain, searches would result in the display of “snippets”, the verbal equivalent of the thumbnails returned by Google image searches.  To generate these snippets, however, Google was scanning entire texts.  Although Google maintained that digitizing entire texts for the purpose of indexing was a fair use under copyright law, in the face of protests in 2005 it did briefly suspend the scanning of copyrighted books in order to allow for an opt-out procedure: for the space of three months, publishers could submit lists of books that were not to be scanned.  Absent notification that the opt-out was being invoked, the book would be digitized (Band, 2006, p. 2).  Some copyright holders felt that this opt-out provision was inadequate to protect their rights, and in September and October of 2005, the Authors Guild and the Association of American Publishers filed separate suits against Google in an attempt to bring the Library Project to a halt on the grounds that the digitization of entire books was inconsistent with the principle of fair use.

Settlement

Settlement of all litigation was announced in October of 2008, and the terms of the settlement were made public in a lengthy document (Google Book Settlement, 2008) that specifies the conditions under which Google may continue to scan and provide access, in full or in part, to three categories of books published before January 5, 2009: (1) in-copyright and in-print, (2) in-copyright but out-of-print, and (3) out-of-copyright.  For the first category, the settlement protects the ownership rights of copyright holders by blocking access to the texts while providing a mechanism for purchasing electronic access (“No Preview Available”).  For the second category, the settlement protects the ownership rights of copyright holders by allowing the reader to view short passages while also permitting the purchase of electronic access to the full text (“Snippet View”).  For the last category, that of books in the public domain, Google will provide free online access to entire books, as it had been doing before the lawsuits were filed (“Full View”) (The Future of Google Book Search, 2009; Google Books Library Project, 2009; New Chapter for Google Book Search, 2008).

The settlement requires Google to pay $ 125 million for copyrighted books it has already scanned.  Google is also required to bear that cost of establishing and maintaining a Book Rights Registry that will receive and distribute future payments.  These costs, however, might have been dwarfed by the penalties that Google could have faced if a court had ruled against Google and adjudged it to have infringed authors’ and publishers’ copyrights.  Moreover, the payments presumably will be offset by the fact that Google will henceforth be entitled to thirty-seven percent of the fees that consumers will be charged for digital access to copyrighted books. In addition, Google may charge publishers for listing these books.  Google may also profit from subscriptions purchased by libraries for access to the entire database of scanned books, including books under copyright.  Expenses may also be recouped by the placement of advertisements on preview pages, a revenue stream that is already part of Google’s business model (Helft & Rich, 2008; Quint, 2008; Rich, 2009; Snyder, 2008). 

Implications for Authors and Publishers

With the settlement, Google is authorized to display more substantial portions of books that are under copyright but out of print.  These books make up the majority of the books that will be searchable via Google Book search.  Of the first seven million books that Google scanned, five million were under copyright yet out of print (Rich, 2009).  Previously, Google could display three snippets of each such book.  Under the settlement, if a copyrighted book is out of print, Google may display, cumulatively, up to twenty percent of the entire text.  Additional restrictions apply depending on the nature of the text.  For example, Google will block the display of the final pages of a work of fiction (Band, 2008, pp. 4-5).

Even though Google will be displaying larger portions of books that are under copyright but out of print, the copyright holders will have little cause to complain.  Previously, such orphan books generated no revenue for the copyright holders.  Now, whenever a reader pays to access online the full text of an orphaned book, a portion of that payment will be deposited in the Book Rights Registry, and those payments will be passed on to the author or publisher who holds the copyright via a mechanism similar to that by which songwriters are recompensed when their melodies are played on the radio.  In effect, Google will advertise and market these books.  Google will take its thirty-seven percent cut, but no money would have been forthcoming at all had it not been for the inclusion of the out-of-print book in Google’s database.

The situation is somewhat different in the case of copyrighted books that are in print.  As in the case of orphan works, Google had previously provided snippets.  Now readers will no longer see portions of the pages that contain their search terms.  Instead, they will be able to view title pages and other sections, such as the index and table of contents, that may help them determine whether to seek further access—either online or bricks and mortar—to the books in which their search terms appear (Band, 2008, p. 5).  It remains to be seen whether any significant sales will accrue to publishers as a result of these displays.  If readers do elect to pay for online access, Google will, again, receive thirty-seven percent of the payment.

Implications for the Public

Even before the settlement, via Google’s Library Project readers were able to locate and access, without charge,the full texts of books in the public domain.  With the settlement, readers can also be sure of locating copyrighted books that may be relevant to their search.  In the case of books that are under copyright but out of print, readers will have access, at no charge, to a limited number of pages that contain or are adjacent to their search term.  They may also purchase full online access to these orphaned books.   The iPod generation, accustomed to accessing media online, may in this fashion give a ‘second life’ to some books whose sales were not sufficient to warrant shelf space in bricks and mortar bookstores.  In the case of copyrighted books that are in print, readers may also purchase online access, but without first sampling any of the pages of the book.

Implications for Educators and Students

A provision in the settlement mandates that Google provide upon request free “Public Access Service” to one terminal in each separate building in each and every public library system in the United States.  This Public Access Service will allow patrons to read books that are under copyright but not in print.  Patrons may not electronically copy or annotate these books, but they may print pages for a per sheet fee (Band, 2008, pgs. 7-8).  Educators may wish to make certain that the public libraries in their communities are aware of this provision, as Google is not required to notify libraries of this service.  In addition, colleges and universities—but not primary, middle, or high schools—may request Public Access Service: one access point per 4,000 students at institutions classified as Associate Colleges and one access point per 10,000 students at other institutions of higher education (Band, 2008, pgs. 7-8).  For both public libraries and institutions of higher education, additional Institutional Subscriptions are available for a fee.  Such subscriptions allow patrons to electronically annotate books, to print up to twenty pages of a book at a time, as well as to copy and paste up to four consecutive pages at a time.  Moreover, books in the Institutional Subscription Database can be made available via e-reserves or as part of course management systems, providing that the intended users would be authorized to use the Institutional Subscription itself (Band, 2008, pgs. 8-9).

Reactions to the Settlement

Reactions to the settlement ranged widely.  Barbara Quint, columnist for Information Today, lauded the settlement for, among other achievements, addressing the problem of orphan works (Quint, 2008).  Lawrence Lessig, author of Free Culture, also was pleased with the settlement’s approach to orphan works, which he felt was likely to be a better solution to that problem than the Orphan Works legislationproposed in Congress.  Overall, he felt that the settlement was better than a win would have been:

The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed. Under the agreement, 20% of any work not opting out will be available freely; full access can be purchased for a fee. That secures more access for this class of out-of-print but presumptively-under-copyright works than Google was initially proposing. And as this constitutes up to 75% of the books in the libraries to be scanned, that is hugely important and good. (Lessig, 2008)

Lessig was also pleased that no court attempted to determine fair use in this case.  The former plaintiffs, he wrote,

are clear that they still don't agree with Google's views about "fair use." But this agreement gives the public (and authors) more than what "fair use" would have permitted. That leaves "fair use" as it is, and gives the spread of knowledge more that it would have had. (Lessig, 2008)

Other analysts were not as sanguine as Lessig.  Even before the settlement, some libraries had refused to partner with Google because of the conditions that the giant company had placed upon the project (Hafner, 2007).  Now, in the wake of the settlement, some critics wondered whether such a powerful player as Google might come to monopolize a potentially important new system for the delivery of virtual books (Cohen, 2009).  Microsoft had tried to start its own program of book digitization but, unable to complete with Google, had abandoned its effort in May of 2008 (Helft, 2008).  Wrote Robert Darnton, head librarian at Harvard, one of the early participants in the Library Project,

… Google will enjoy what can only be called a monopoly—a monopoly of a new kind, not of railroads or steel but of access to information. Google has no serious competitors… Google alone has the wealth to digitize on a massive scale. And having settled with the authors and publishers, it can exploit its financial power from within a protective legal barrier; for the class action suit covers the entire class of authors and publishers. No new entrepreneurs will be able to digitize books within that fenced-off territory, even if they could afford it, because they would have to fight the copyright battles all over again. (Darnton, 2009)

There is a non-exclusivity proviso included in the settlement so that libraries (there are now many more than the original five) may make their collections available for scanning to other companies or entities (Band, 2008, p. 19).  Moreover, Google may have benign intentionsunder its current leadership.  Nevertheless, it has cornered the market on book digitization, and this concerns some onlookers.  On the other hand, Google has succeeded in negotiating a space within which new products can be brought to the market while respecting copyright, and it is arguable that only a gorilla the size of Google would have had the pocketbooks and the savvy to force media conglomerates to accommodate its view of “fair use.” 

Works Cited

Band, J.  (2006, Jan.).  The Google Library Project: The Copyright Debate.   Office for Information Technology Brief.  American Library Association.  Retrieved Feb. 14, 2009 from

_____.  (2008, Nov. 13).  A Guide for the Perplexed: Libraries and Google Library Project settlement.  American Library Association.  Retrieved Feb. 14, 2009 from http://www.arl.org/bm~doc/google-settlement-13nov08.pdf

Cohen, N.  (2009,Feb. 1).  Some Fear Google’s Power in Digital Books.  The New York Times.  Retrieved February 14, 2009 from http://www.nytimes.com/2009/02/02/technology/internet/02link.html?scp=6&sq=google%20book%20search&st=cse

Darnton, R.  (2009, Feb. 12).  Google and the Future of Books.  The New York Review of Books.  Retrieved Feb. 14, 2009 from http://www.nybooks.com/articles/22281

The Future of Google Book Search: Our Groundbreaking Agreement with Authors and Publishers.  (2009).  Google Book Search Settlement Agreement.  Retrieved Feb. 14, 2009 from http://books.google.com/googlebooks/agreement/#1

Google Book Settlement.  (2008).  Retrieved Feb. 14, 2009 from http://www.googlebooksettlement.com/r/view_settlement_agreement

Google Books Library Project: An Enhanced Card Catalog of the World's Books.  (2009).  Google Book Search.  Retrieved Feb. 14, 2009 from http://books.google.com/googlebooks/library.html

Hafner, K.  (2005 Nov. 21).  At Harvard, a Man, a Plan and a Scanner.  The New York Times.  Retrieved February 14, 2009 from http://www.nytimes.com/2005/11/21/business/21harvard.html?_r=1&scp=1&sq=google%20book%20search&st=cse

_____.  (2007 Oct. 22).  Libraries Shun Deals to Place Books on Web.  The New York Times.  Retrieved February 14, 2009 from http://www.nytimes.com/2007/10/22/technology/22library.html?scp=11&sq=google%20book%20search&st=cse

Helft, M.  (2008 May 24).  Microsoft Will Shut Down Book Search Program.  The New York Times.  Retrieved February 14, 2009 from http://www.nytimes.com/2008/05/24/technology/24soft.html?scp=16&sq=google%20book%20search&st=cse  

Helft, M., and Rich, M.  (2008 Oct. 28).  Google Settles Suit over Book-Scanning.  The New York Times.  14 February 2009 <http://www.nytimes.com/2008/10/29/technology/internet/29google.html?scp=14&sq=google%20book%20search&st=cse

History of Google Book Search.  (2009).  About Google Book Search.  Retrieved February 14, 2009 from http://books.google.com/intl/en/googlebooks/history.html

Lessig, L.  (2008, Oct. 29).  On the Google Book Search Agreement.  Lessig2.0: Blog.  Retrieved Feb. 14, 2009 from http://www.lessig.org/blog/2008/10/on_the_google_book_search_agre.html

Manuel, K.M.  (2009, Feb. 5).  "The Google Library Project: Is Digitization for Purposes of  Online Indexing Fair Use under Copyright Law."  Congressional Research Service.   Open CRS: Congressional Research Reports for the People.  Retrieved March 23, 2009  from http://opencrs.com/document/R40194

New Chapter for Google Book Search.(2008 Oct. 28).  The Official Google Blog.  Retrieved February 14, 2009 from http://googleblog.blogspot.com/2008/10/new-chapter-for-google-book-search.html

Quint, B.  (2008, Nov. 3).  The Google Book Search Settlement: ‘The Devil’s in the Details’.  Information Today.  Retrieved Feb. 14, 2009 from file:///H:/Synchronize/Intellectual%20Property/Devil%20in%20Details.htm

Rich, M. (2009 Jan. 4). Google Hopes to Open a Trove of Little-Seen Books. The New York Times.  Retrieved February 14, 2009 from http://www.nytimes.com/2009/01/05/technology/internet/05google.html

Snyder, C.  (2008 October 28).  Google Settles Book-Scan Lawsuit, Everybody Wins.  EpicenterWired blog network.  Retrieved February 14, 2009 from http://blog.wired.com/business/2008/10/google-settles.html

For additional sources on Google Book Search and the Settlement, see

Bailey, C.W., Jr. (2008, Dec. 9).  Google Book Search Bibliography.  Intellectual Property.  Retrieved Feb. 14, 2009 from file:///H:/Synchronize/Intellectual%20Property/gbsb.htm

Slocum, M.  (2008, Oct. 30).  Reaction to Google Book Search Settlement.  Tools of Change for Publishing.  Retrieved Feb. 14, 2009 from file:///H:/Synchronize/Intellectual%20Property/reaction-to-google-book-search.html

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