The content production and delivery world continues to wait with bated breath for a decision as to the legality of the Google Books project. Several years ago, Google announced that it was partnering with major libraries – including, among many others, the Harvard University Library, the New York Public Library, and Oxford University’s Bodleian Library – to scan the full text of books in their collections. Google’s ultimate aim is to make book text searchable online and, where possible, to allow users to access entire books online.
The library project has raised concern among authors and publishers, however, because it involves scanning – that is, making a copy – of copyright-protected books without permission. Displaying the scanned text online, of course, raises further copyright issues. Some of the books scanned are old enough that their copyright terms have expired; for these public domain works, Google is free to scan and display as much as it desires. For books that are still in copyright and in print, Google has partnered with many publishers to allow users to search their books online, view “snippets” of the text, and access links to buy or borrow the actual books. However, for books that are still in copyright but out of print, the situation is more complex, particularly for “orphan works” for which the copyright owners cannot be identified.
The controversy has led to a class-action lawsuit spearheaded by The Authors’ Guild and the Association of American Publishers. The plaintiffs have claimed that Google’s actions in scanning books and displaying them online constitute massive copyright infringement. Last year, the parties drafted their second settlement agreement in an attempt to put to rest the copyright holders’ claims. The proposed settlement provides a $125 million settlement fund to be distributed as royalties to copyright holders whose works appear on Google Books. In addition, Google has promised to create a non-profit “Book Rights Registry” that will manage a database matching works to their copyright owners and will handle rights claims, in an attempt to make it easy for owners of “orphan works,” where they exist, to come forward and assert their rights. Copyright owners would be able to prevent their works from appearing on Google Books by contacting Google to “opt out.” To facilitate opt-out, Google will refrain from posting any book deemed to be out of print until 60 days after such a designation is made; after that window, if there is no opt-out request, Google will make the book’s text available online.
Because the plaintiffs in the lawsuit represent a class of absent copyright owners, the court is required to determine whether the proposed settlement is fair, reasonable, and adequate. The case is pending before Judge Denny Chin in the Southern District of New York. Judge Chin held a fairness hearing on the settlement proposal on February 18, 2010, during which he heard from about thirty interested parties, in addition to the plaintiffs, defendant Google, and the U.S. Department of Justice, which has raised a number of concerns about the settlement on procedural and antitrust grounds. Judge Chin has yet to issue a ruling, and observers are hopeful that he will be able to resolve the case before the Senate acts on his nomination to sit on the Second Circuit Court of Appeals.
For more on the legal arguments raised by opposers of the settlement, check back for future posts. In the meantime, see Google’s own description of the project and the settlement agreement and take a look at what’s available on the current version of Google Books.