Google Book Search Settlement Agreement
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The Google Book Search Settlement Agreement was a proposed settlement agreement between the Authors Guild, the Association of American Publishers, and Google in the settlement of Authors Guild et al. v. Google, a class action lawsuit alleging copyright infringement on the part of Google. The settlement was initially proposed in 2008, but ultimately rejected by the court in 2011. In late 2013, the presiding U.S. Circuit Judge dismissed Authors Guild et al. v. Google.
- 1 Lawsuit history
- 2 Proposed settlements
- 3 Criticisms
- 4 See also
- 5 References
- 6 Further reading
- 7 External links
In 2002, Google began digitizing library books. In 2004, the company launched Google Books, allowing users to search its database of books. The project allowed users to view snippets of copyrighted books, and download and view full copies of public domain books.
On September 20, 2005, the Authors Guild filed a class action lawsuit in the Southern District of New York against Google. The Authors Guild argued that Google's Library Project involved "massive copyright infringement" because it created digital copies of copyrighted works. In response, Google temporarily stopped digitizing copyrighted works to allow for changes to its Print Publisher Program  and to allow copyright owners to submit lists of books they wished to be excluded from the project.
On October 19, 2005, the Association of American Publishers filed another lawsuit against Google for copyright infringement, seeking an injunction on the book project. Google responded that the endeavor constituted fair use, as they were only showing "snippets" of the books that they did not have explicit permission to display from the work's copyright holder.
In Spring 2006 the parties began negotiations to settle the lawsuit.
On November 14, 2013, Authors Guild Inc. et al. v. Google Inc. (U.S. District Court, Southern District of New York, No. 05-08136), was dismissed by U.S. Circuit Judge Denny Chin. This decision was a victory for Google, granting them the right to expand their digital library.
There were several proposed settlement agreements to Authors Guild Inc. et al. v. Google Inc., but none were accepted by all of the parties involved.
On October 28, 2008, Google announced an agreement to pay $125 million to settle the lawsuit. The settlement agreement also included licensing provisions, allowing Google to sell personal and institutional subscriptions to its database of books. On November 9, 2009, the parties filed an amended settlement agreement after a Department of Justice brief suggested that the initial agreement may violate United States antitrust law.
On February 18, 2010, the court held a hearing to decide whether the proposed settlement was fair. On March 22, 2011, supervising judge Denny Chin issued a ruling rejecting the settlement. Chin urged that the settlement be revised from one whether authors "opt-in" to having their works digitized rather than "opt-out", and planned a "status conference", at which to discuss next steps, for April 25. A series of status conferences were held throughout 2011, but an amended "opt-in" settlement was never reached. The case was scheduled to go to court by July 2012, after Judge Chin certified the class represented by the Authors Guild, meaning that the guild could represent the other plaintiffs in the class action lawsuit.[specify] The Second Circuit Court of Appeals overturned that class certification in 2013.
Initial settlement agreement
In October 2008, the parties involved in the lawsuit proposed a settlement agreement, which called for Google to pay out $125 million: $45 million to the rightsholders whose copyrights had allegedly been infringed; $15.5 million for the publishers' legal fees; $30 million to the authors' lawyers; and $34.5 million to create a Book Rights Registry, a form of copyright collective that would collect revenues from Google and dispense them to the rightsholders. In exchange, the agreement released Google and its library partners from liability for its book digitization. The agreement was built upon an intricate joint venture arrangement for the management of Google's book project, including a variety of revenue models.[clarification needed] Google would generate revenue from its books project through an institutional subscription for libraries, a consumer subscription for indefinite access to individual books, referral links to retail booksellers, and advertising on book pages.
Amended settlement agreement
In November 2009, the parties amended the settlement agreement. The amended agreement included the following significant changes:
- Foreign works
- The amended agreement limited the use of foreign books to those that are registered with the U.S. Copyright Office or published in the United Kingdom, Canada, or Australia. It also added representatives from the UK, Canada, and Australia to the board of the Books Rights Registry.
- Revenue model
- Under the amended agreement, rightsholders had the ability to renegotiate their revenue share, and Google would add flexibility in discounting.[clarification needed]
- Unclaimed works
- The amended agreement created a fiduciary to hold payments due to orphan works. If the rightsholder was never ascertained, the funds would been distributed cy-près instead of distributed among other rightsholders.
- Public access license
- The amended agreement expanded the number of public licenses allowed for a library.
In February 2009, a Google Book Search Settlement website was created where rightsholders could claim their books for the purposes of the settlement. Rightsholders whose books had digitized by Google and who claimed their books receives 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 also had the ability to alter the default display settings.
Amended settlement agreement rejection
The court held a hearing to decide whether the proposed settlement was fair on February 18, 2010. On March 22, 2011, the supervising judge, Denny Chin, issued a ruling rejecting the settlement.
Chin discussed seven objections to the settlement in his opinion, including those regarding its implications to copyright, antitrust, privacy, and international law. Chin's primary reason for blocking the settlement was based on the fact that the amended settlement agreement would "release Google (and others) from liability for certain future acts."
Chin urged that the settlement be revised from one whether authors "opt-in" to having their works digitized rather than "opt-out", and set on April 25 date for a "status conference" at which to discuss next steps.
A status conference was held on June 1, 2011 which deferred the meeting until July 19. At the July 19 status conference the parties attempted to "reassure Judge Chin that the negotiations were making real progress," and Judge Chin scheduled another status conference for September 15, urging the parties to come to an acceptable opt-in agreement or face a "tight discovery schedule". The status conference on September 15 resulted in a discovery schedule that would have had the case at trial by July 2012, after Judge Chin certified the class represented by the Authors Guild.
However, in 2013, the Second Circuit Court of Appeals overturned the class certification, and remanded the case to the District Court for consideration of its fair use issues. Judge Chin then received the case and ordered that both parties "file their oppositions to the cross-motions for summary judgment" with brief legal memoranda under a strict timeline for subsequent oral arguments, responses, and replies. In view of the statements, affidavits, evidence discovery, and arguments, Judge Chin ruled that "the plaintiffs' motion for partial summary judgment is denied and Google's motion for summary judgment is granted". On December 23 of the same year, a filing for appeal was submitted by the Association of American Publishers and its lawyers on behalf of multiple publishing companies, The Authors Guild et al., moving the case back into the U.S. Second Circuit Courts.
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 as the fair use claims are arguably so excessive that it may cause a judicial limitation of that right. This proposed settlement left the fair use dispute unresolved.
In December 2009, science fiction and fantasy author Ursula K. Le Guin announced on her website her resignation from the Authors' Guild over the settlement, claiming the leadership of the Guild had "sold us [its members] down the river" and that the settlement threatened "the whole concept of copyright."
Since the settlement agreement covers the previously digitized books and provides a revenue model for future digitization, it "[gives] Google control over the digitizing of virtually all books covered by copyright in the United States." As the license agreement is non-exclusive, it does not necessarily tie publishers to Google's service. In a journal article, MIT Professor Jerry A. Hausman and Criterion Economics Chairman J. Gregory Sidak conclude that the service will be unable to exercise market power. Hausman and Sidak believe that Google Book Search should, on net, yield a significant gain in consumer surplus.
Google will be able to create a "content management system" with their scans as a result of the settlement and will have the power to remove inappropriate books the same way that it is able to remove inappropriate movies from YouTube. Organizations such as the International Federation of Library Associations and Institutions and the Electronic Frontier Foundation (EFF) fear that pressure from governments and special interest groups could lead to the censorship of certain books and that there is public interest in protecting the scans from being buried behind Google's ranking system.
At the final hearing about the fairness of the settlement, privacy advocates from the EFF and American Civil Liberties Union voiced concerns that Google would keep a record of the books accessed through its program. Privacy advocates want Google to provide privacy assurances comparable to those enjoyed by visitors to traditional libraries.
In 2008, Google announced that via partnerships with magazine publishers, content from titles such as New York, Popular Mechanics, and Ebony would be made available via its book search. Section 1.19 and 1.104 of the settlement agreement defined books in a way that specifically excluded periodicals, personal papers, and other materials. As of April 2013, full issues of periodical titles appear in Google Books as individual books, even though most bibliographic databases, many of which provide data to Google, make clear delineations between books and periodicals. Google also displays complete back issues of many titles without providing content contributors with a means to exercise their electronic publishing rights regarding those publications.
Response to the amended settlement
Before the amended settlement, the Open Book Alliance released a framework for "Settlement 2.0":
- The settlement must not grant Google an exclusive set of rights (de facto or otherwise) or result in any one entity gaining control over access to and distribution of the world’s largest digital database of books.
- Authors and other rights holders must retain meaningful rights and the ability to determine the use of their works that have been scanned by Google.
- The settlement must result in the creation of a true digital library that grants all researchers and users, commercial and non-commercial, full access that guarantees the ability to innovate on the knowledge it contains.
- All class members must be treated equitably.
- The settlement cannot provide for competition by making others engage in future litigation.
- Congress must retain the exclusive authority granted by the U.S. Constitution to set copyright policy.
- All rights holders impacted by the settlement must have a meaningful ability to receive notice, understand its terms and opt-out.
- The parties that negotiated the settlement must live under the terms to which they seek to bind others, rather than their own separately negotiated arrangements.
After the amended settlement, the Open Book Alliance said, "Fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners...by performing surgical nip and tuck...[they] are attempting to distract people from their continued efforts to establish a monopoly over digital-content access and distribution."
The Open Book Alliance outlined its major concerns:
- The settlement still allows Google to purchase a monopoly on digital books.
- Authors must still opt out of the agreement even if they have not given their consent to be included in the deal.
- Google’s claims regarding the Unclaimed Works Fiduciary are misleading and simply false.
- Consumer privacy has not been protected or improved.
- Academic libraries and independent researchers are still at the mercy of pricing from Google’s one stop book shop.
- Instead of negotiating with stakeholders, Google cuts them out.
Judge Chin's ruling outlined the key areas of contention with the settlement as follows: 1) Adequacy of Class Notice; 2) Adequacy of Class Representation; 3) Scope of Relief Under Rule 23 (relating to forward-looking business arrangements); 4) Copyright Concerns; 5) Antitrust Concerns; 6) Privacy Concerns; and 7) International Law Concerns. Chin described the copyright and the scope of relief under rule 23 objections as the most concerning of the case. Though the judge stated "that most of the Grinnell factors favor approval of the settlement," several overriding issues favored denying the settlement.:18 For example, the settlement would have "transfer[ed] to Google certain rights in exchange for future and ongoing arrangements, including the sharing of future proceeds, and it would release Google (and others) from liability for certain future acts," which "exceeds what the Court may permit under Rule 23." Judge Chin suggested that this matter would best be dealt with by Congress, rather than the courts. He also determined that the settlement exceeded the scope of the claims against Google and "would release claims well beyond those contemplated by the pleadings." In addition, the judge carefully considered the concerns of members of the class who claimed they were not adequately covered by the class. In considering the copyright claims, Chin wrote, "It 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."
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