Authors Guild, Inc. v. Google, Inc.
|Authors Guild, Inc. v. Google, Inc.|
|Court||United States District Court for the Southern District of New York, United States Court of Appeals for the Second Circuit|
|Full case name||The Authors Guild Inc., et al. v. Google, Inc.|
|Decided||November 14, 2013 (SDNY); pending appeal to 2d Circuit|
|Judge(s) sitting||Denny Chin (SDNY); Pierre N. Leval, José A. Cabranes, Barrington Daniels Parker, Jr. (2d Cir.)|
|copyright infringement, fair use|
Authors Guild v. Google is a copyright case being litigated in the United States. It centers on the allegations by the Authors Guild, and previously by the Association of American Publishers, that Google infringed their copyrights in developing its Google Book Search database.
In late 2013, U.S. Circuit Judge Denny Chin (sitting by designation) dismissed the lawsuit, and affirmed that the Google Books program meets all legal requirements for "fair use,"  in what Publishers Weekly called a "ringing endorsement" of Google. The Authors Guild appealed the ruling to the U.S. Second Circuit, which held oral arguments in late 2014.
The publishing industry and writers' groups have criticized the project's inclusion of snippets of copyrighted works as infringement. Despite Google taking measures to provide full text of only works in public domain, and providing only a searchable summary online for books still under copyright protection, publishers maintain that Google has no right to copy full text of books with copyrights and save them, in large amounts, into its own database.
Siva Vaidhyanathan, associate professor of Media Studies and Law at the University of Virginia has argued that the project poses a danger for the doctrine of fair use, because the fair use claims are arguably so excessive that it may cause judicial limitation of that right.
Google licensing of public domain works is also an area of concern due to using of digital watermarking techniques with the books. Some published works that are in the public domain, such as all works created by the U.S. Federal government, are still treated like other works under copyright, and therefore locked after 1922.
Inception of the lawsuit
In late 2005 the Authors Guild of America and Association of American Publishers separately sued Google, citing "massive copyright infringement." Google countered that its project represented a fair use and is the digital age equivalent of a card catalog with every word in the publication indexed.
The lawsuits were consolidated, and eventually a settlement was proposed. The settlement received significant criticism on a wide variety of grounds, including antitrust, privacy, and inadequacy of the proposed classes of authors and publishers. The settlement was eventually rejected, and the publishers settled with Google soon after.
The Authors Guild continued its case, and in 2011 their proposed class was certified. Google appealed that decision, with a number of amici asserting the inadequacy of the class, and the Second Circuit rejected the class certification in July 2013, remanding the case to the District Court for consideration of Google's fair use defense.
Proposed settlement agreement
The Authors Guild, the publishing industry and Google entered into a settlement agreement October 28, 2008, with Google agreeing to pay a total of $125 million to rights-holders of books they had scanned, to cover the plaintiffs' court costs, and to create a Book Rights Registry. The settlement was set to be approved by the court sometime after October 2009. Reaction to the settlement was mixed, with Harvard Library, one of the original contributing libraries to Google Library, choosing to withdraw its partnership with Google if "more reasonable terms" could not be found. As part of the $125 million settlement signed in October 2008, Google created a Google Book Settlement web site that went active on February 11, 2009. This site allowed authors and other rights holders of out-of-print (but copyright) books to submit a claim by June 5, 2010. In return they were to receive $60 per full book, or $5 to $15 for partial works. In return, Google was to be able to index the books and display snippets in search results, as well as up to 20% of each book in preview mode. Google was also to be able to show ads on these pages and make available for sale digital versions of each book. Authors and copyright holders were to receive 63 percent of all advertising and e-commerce revenues associated with their works.
In the US, several organizations who took no part of the settlement, such as the American Society of Journalists and Authors, criticized the settlement fundamentally. Moreover, the New York book settlement is not restricted to US authors, but relevant to authors of the whole world. This led to objections even on the level of some European governments and critical voices in many European newspapers. American author Ursula K. Le Guin launched a petition against the settlement, which was signed by almost 300 authors.
In October 2009, Google countered ongoing critics by stating that its scanning of books and putting them online would protect the world's cultural heritage; Google co-founder Sergey Brin stated, "The famous Library of Alexandria burned three times, in 48 BC, AD 273 and AD 640, as did the Library of Congress, where a fire in 1851 destroyed two-thirds of the collection. I hope such destruction never happens again, but history would suggest otherwise." This characterization was rebuked by Pam Samuelson, UC Berkeley Professor of Law saying
"Libraries everywhere are terrified that Google will engage in price-gouging when setting prices for institutional subscriptions to GBS contents ... Brin forgot to mention another significant difference between GBS and traditional libraries: their policies on patron privacy. ... Google has been unwilling to make meaningful commitments to protect user privacy. Traditional libraries, by contrast, have been important guardians of patron privacy."
In February 2009, a Google Book Search Settlement web site was created where rightsholders could claim their books for the purposes of the settlement. Rightsholders whose books have been digitized by Google and who have claimed their books will receive a one-time payment of $60 per book, or $5 to $15 for partial works (called "inserts"), plus 63% of all revenues associated with their works, including subscription, referrals, and advertisements. After claiming a book, a rightsholder will also have the ability to alter the default display settings.
In November 2009, the parties amended the settlement agreement. The amended agreement included several significant changes: limited the scope to foreign books that are registered with the U.S. Copyright Office or published in the UK, Canada, or Australia, added board members to the Books Rights Registry from the UK, Canada, and Australia, gave the rightsholder has the ability to renegotiate the revenue share, gave Google added flexibility in discounting, created a fiduciary to hold payments due to orphan works. If the rightsholder is never ascertained, the funds are distributed cy-près instead of redistributed among rightsholders, and increased the number of public licenses allowed for a library.
Amended agreement rejected
On March 22, 2011, U.S. Circuit Judge Denny Chin (sitting by designation) issued a ruling on the amended settlement agreement, rejecting it. From the ruling:
[I]t is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission. [...] While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action - - which was brought against defendant Google Inc. ("Google") to challenge its scanning of books and display of "snippets" for on-line searching - - to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case. Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied."
The Wall Street Journal commented on the practical impact of this ruling saying that:
"Judge Chin's ruling changes little for Google users. About two million books that are in the public domain, such as works of William Shakespeare, currently can be viewed free on the Google Books site. [...] Google Books users currently can view long previews of another two million books that are in copyright and in print, thanks to agreements between Google and tens of thousands of publishers that were separate from the legal settlement. Millions more books that are in copyright but out of print are currently available in Google Books in a shorter 'snippet view.' Had the settlement been approved, users would have been able to see longer previews and potentially buy those books."
District court dismissal
- In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.
Chin's ruling analyzed the four traditional factors (now codified in statutory law) that decide whether use of a copyrighted work constitutes fair use under United States copyright law, and concluded that the Google Books program meets all legal requirements for "fair use". On the most important factor, possible economic damage to the copyright owner, Chin wrote that "Google Books enhances the sales of books to the benefit of copyright holders.” 
According to law professor Eric Goldman, reactions to the ruling generally favored Judge Chin's ruling, with the Association of Research Libraries calling on the Authors Guild to "wise up and focus their energies on more productive pursuits." 
On April 11, 2014, the Authors Guild appealed the ruling to the U.S. Second Circuit. It also began lobbying Congress to create a non-profit organization similar to ASCAP that would digitize and license books from participating authors to all libraries, schools, and other organizations choosing to pay a subscription fee. Oral arguments were held on December 3, 2014, before Judges Pierre N. Leval, José A. Cabranes, Barrington Daniels Parker, Jr.. 
- Google Books ruled legal in massive win for fair use (updated), Ars Technica Nov 14 2013
- Google Wins: Court Issues a Ringing Endorsement of Google Books, Publishers Weekly, Nov 14, 2013
- People's Daily Online (August 15, 2005). "Google's digital library suspended".
- Siva Vaidhyanathan. "The Googlization of Everything and the Future of Copyright", University of California Davis Law Review, volume 40 (March 2007), pp. 1207–1231, (pdf).
- Robert B. Townsend, Google Books: Is It Good for History?, Perspectives (September 2007).
- Copyright infringement suits against Google and their settlement: "Copyright Accord Would Make Millions More Books Available Online". Google Press Center. Retrieved November 22, 2008.
- 770 F.Supp.2d 666 (SDNY March 22, 2011).
- Authors Guild v. Google, 2d Cir. July 1, 2013.
- "Google Online Book Deal at Risk".
- "Google Book Settlement Site Is Up; Paying Authors $60 Per Scanned Book", by Erick Schonfeld on February 11, 2009, at TechCrunch
- American Society of Journalists and Authors
- Es wird Zeit, dass die Bundesregierung eingreift
- Flood, Alison (January 22, 2010). "Ursula Le Guin leads revolt against Google digital book settlement". The Guardian (London).
- BBC: Google hits back at book critics
- Google Books Is Not a Library
- "The Case for Book Privacy Parity: Google Books and the Shift from Offline to Online Reading". Harvard Law and Policy Review. May 16, 2010. Retrieved September 8, 2010.
- Pohl, R.D. (November 17, 2009). "Google Books Settlement gets a makeover". The Buffalo News. Retrieved March 26, 2010.
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- Full text of Judge Chin's ruling.
- Amir Efrati and Jeffrey A. Trachtenberg (March 23, 2011). "Judge Rejects Google Books Settlement". Wall Street Journal.
- "Opinion in Authors Guild v. Google", Circuit Judge Chin, Case 1:05-cv-08136-DC Document 1088, November 14, 2013. Retrieved November 17, 2013.
- Why Google's Fair Use Victory In Google Books Suit Is A Big Deal--And Why It Isn't, Forbes magazine, 11-14-2013
- ARL Policy Notes, 11-14-2013
- Oral Argument in Authors Guild v. Google, 12-10-14