Google Book Search Settlement Agreement

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The Google Book Search settlement agreement is the 303-page agreement reached between the Authors Guild, the Association of American Publishers and Google in October 2008 in settlement of Authors Guild et al. v. Google, a lawsuit filed against Google, citing "massive copyright infringement" related to the Google Books Library Project. The Settlement seeks to end the litigation through the establishment of a complex new business arrangement that develops revenue models to compensate authors and publishers for the use of their copyrighted books through Google's digital platform.

The Settlement Agreement has yet to be approved. The Court was to hold a Fairness Hearing in consideration of approval.[1][2] However, on September 24, after the Department of Justice filed a brief suggesting that the Agreement was in violation of US anti-trust laws, the hearing was adjourned because the settling parties wanted to undertake changes to the Agreement to improve its chances of being approved by the Southern District Court of New York. [3]. An Amended Agreement was filed with the Court on November 13 (often referred to as Settlement 2.0) and a new Fairness Hearing has been scheduled for February 18, 2010. The supervising judge is Denny Chin.

Contents

History of Lawsuit

On 20 September 2005, the Authors Guild submitted a class action lawsuit against Google Inc. arguing that its Library Project involved "massive copyright infringement" by creating digital copies of copyrighted works for commercial use.[4][5]

In response, Google temporarily suspended the scanning of copyrighted works to allow for changes to its Print Publisher Program and allow copyright owners to submit lists of books they wish to be excluded.[6]

On 19 October 2005, the Association of American Publishers filed another lawsuit against Google for copyright infringement, seeking injunctive relief.[7]

Google responded that its use was a fair use because they were only showing "snippets" for books where they did not have permission from a rightsholder. [8].

In the Spring of 2006 the parties began protracted negotiations to settle the lawsuit.

Settlement

In October 2008, the parties to the lawsuit proposed a Settlement Agreement, which called for Google to pay out $125 million: $45 million would go to pay rightsholders whose copyrights had allegedly been infringed; $15.5 million to the publishers' legal fees; $30 million to the authors' lawyers; and $34.5 million dollars toward the funding of a new entity provisionally called the Book Rights Registry, a form of copyright collective that will collect revenues from Google and dispense them to the rightsholders, among other duties. In exchange, Google is released from liability for its book digitization. The Agreement is built upon an intricate joint venture arrangement for the management of Google's book project, including a variety of revenue models, including an "institutional subscription database" that will be sold to colleges and universities; the "consumer" model of selling perpetual access to individual books; and various anticipated revenue models.

In February 2009, a Google Book Search Settlement web site was created where rightsholders of books could "claim" their books for the purposes of the Settlement. [9] 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"),[9] plus 63 percent of all revenues associated with their works.[9]

Controversy

Harvard University Library, which had been one of the original partners to Google's Library Project, has threatened to end its partnership with Google should the company continue its policy of scanning books that are still under copyright.[10]

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.[11][12] Because of the settlement, Author's Guild et al. v. Google leaves the fair use dispute unresolved.

Among the most important criticisms, is that the settlement, if approved, will "give Google control over the digitizing of virtually all books covered by copyright in the United States."[13] Others consider antitrust concerns over Google Book Search to be misplaced. 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.[14]

Additionally, Google will be able to create a "content management system" with their scans as a result of the settlement[15] and will have the power to remove inappropriate books the same way that it is able to remove inappropriate movies from YouTube. Some fear that this could lead to censorship and that there is public interest in protecting the scans from being buried behind Google's ranking system.

Some have claimed that before the settlement is final, other concessions from Google should be obtained to ensure that Google's potential as the global big-box library provide privacy assurances comparable to those enjoyed by visitors to traditional libraries.[16][17]

Prominent technology, publishing, library and author groups have formed the Open Book Alliance[18] works to counter the "scheme to monopolize the access, distribution and pricing of the largest digital database of books in the world."[19]

Brewster Kahle, the co-founder of the Internet Archive and Open Content Alliance has been critical of the proposed settlement, saying "Let's free the orphans, not have them pass from their legal limbo into a life controlled by Google"[20]

In December 2009, science fiction and fantasy author Ursula K. LeGuin 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."[21]

Open Book Alliance

Settlement 2.0 Baseline

The Open Book Alliance has released a framework for "Settlement 2.0".[22]

Settlement 2.0 Baseline:
  • 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.

Settlement revision response

Google waited "until the last legal minute"[23] to release a revised settlement by its November 13 deadline. However, dissatisfaction lingers, 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[23];

  • 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.

The Public Index

The Public Index is a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School. They are a group of professors, students, and volunteers who believe that the Google Book Search lawsuit and settlement deserve a full, careful, and thoughtful public discussion.[24]

References

  1. Google Book Settlement FAQs (July 25, 2009).
  2. Open Book Alliance Important Dates
  3. District court order
  4. "Complaint 05 CV 8136: Author's Guild v. Google". United States District Court for the Southern District of New York. 20 September 2005. http://www.authorsguild.org/advocacy/articles/settlement-resources.attachment/authors-guild-v-google/Authors%20Guild%20v%20Google%2009202005.pdf. Retrieved 26 May 2009. 
  5. Authors Guild (20 September 2005). "Authors Guild Sues Google, Citing 'Massive Copyright Infringement'". Press release. http://www.authorsguild.org/advocacy/articles/authorsguildsuesgooglecitingmassivecopyrightinfringement.html. Retrieved 26 May 2009. 
  6. Kane, Margaret (25 August 2005). "Google pauses library project". CNET Networks. http://news.cnet.com/Google-pauses-library-project/2100-1025_3-5830035.html. Retrieved 26 May 2009. 
  7. "Complaint 05 CV 8881: McGraw-Hill v. Google". United States District Court for the Southern District of New York. 19 October 2005. http://publishers.org/main/Copyright/attachments/40_McGraw-Hill_v_Google.pdf. Retrieved 26 May 2009. 
  8. "Answer 05 CV 8136 (JES): Author's Guild v. Google". United States District Court for the Southern District of New York. 8 November 2005. http://www.authorsguild.org/advocacy/articles/settlement-resources.attachment/googles-answer-to-publishers/Google%27s%20Answer%20to%20Publishers%2011082005.pdf. Retrieved 26 May 2009. 
  9. 9.0 9.1 9.2 Schonfeld, Erick (11 February 2009). "Google Book Settlement Site Is Up; Paying Authors $60 Per Scanned Book". TechCrunch. http://www.techcrunch.com/2009/02/11/google-book-settlement-site-is-up-paying-authors-60-per-scanned-book/. Retrieved 26 May 2009. 
  10. Mirviss, Laura G. (30 October 2008). "Harvard-Google Online Book Deal at Risk". The Harvard Crimson. http://www.thecrimson.com/article.aspx?ref=524989. Retrieved 26 May 2009. 
  11. Vaidhyanathan, Siva (March 2007). "The Googlization of Everything and the Future of Copyright". University of California Davis Law Review 40 (3): 1207–1231. ISSN 0197-4564. http://lawreview.law.ucdavis.edu/issues/Vol40/Issue3/DavisVol40No3_Vaidhyanathan.pdf. Retrieved 26 May 2009. 
  12. Hillesund, Terje (3 September 2007). "Reading Books in the Digital Age subsequent to Amazon, Google and the long tail". First Monday 12 (9). http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2012/1887. Retrieved 26 May 2009. 
  13. Darnton, Robert (12 February 2009). "Google & the Future of Books". The New York Review of Books 56 (2). http://www.nybooks.com/articles/22281. Retrieved 26 May 2009. 
  14. "Google and the Proper Antitrust Scrutiny of Orphan Books". Journal of Competition Law & Economics 5 (3). 26 August 2009. http://www.criterioneconomics.com/Google%20and%20the%20Proper%20Antitrust%20Scrutiny%20of%20Orphan%20Books.pdf. Retrieved 27 August 2009. 
  15. Jones, Miracle (27 April 2009). "The Fiction Circus Interviews James Grimmelmann About the Google Books Settlement". The Fiction Circus. http://www.fictioncircus.com/news.php?id=356&mode=one. Retrieved 26 May 2009. 
  16. Google Book Search Settlement and Reader Privacy
  17. Privacy Missing From Google Books Settlement, PW World, August 28, 2009
  18. Open Book Alliance Members
  19. Open Book Alliance Mission
  20. Google Claims to be the Lone Defender of Orphans: Not lone, not defender
  21. Open letter of resignation from the Authors' Guild by Ursula K. LeGuin
  22. Open Book Alliance Releases Baseline Requirements for Revised Google Book Settlement Proposal
  23. 23.0 23.1 Parties Submit New Proposal to Settle Google Book Search Litigation
  24. The Public Index About

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