Google Settles Suit with Book Publishers and Authors

Nov 04, 2008

Libraries are about to get Googled. A settlement was reached on October 28 in the class-action lawsuit brought in 2005 by the Authors Guild and Association of American Publishers against Google, and both sides seem to be pleased with the outcome. The Authors Guild and Association of American Publishers will help distribute a $45 million class-action payout to authors and publishers whose copyrights were infringed when their works were uploaded without permission by the digital Google Books project. Google, in turn, will spend $34.5 million to build a subscription-based system allowing users to preview, search, and ultimately purchase access to in-copyright, out-of-print titles through Google Books. However, while the two parties have made their peace, there are several key issues left unsettled: How will the subscription model impact readers and authors? And will Google be able to dodge the "fair use" question in courtrooms forever?

With the 2004 launch of Google Books, Google positioned itself to be a kind of digital version of the famous Library at Alexandria. Partners at some of the largest academic libraries in America opened their stacks to Google’s lightning-fast scanners (capable of scanning up to 1,000 pages per hour) and allowed the results to be made available through the Google Books database. Four years later, they’ve made it possible to search the full text of more than seven million books. The majority of those books have passed out of copyright and into the public domain.

Google made it clear up front that portions of copyright-protected works would be included, for search purposes. They operated on the opt-out model common to user-generated content platforms like YouTube, where copyright holders can ask that their work be taken down after they find it online. It didn’t take long for the Authors Guild and Association of American Publishers to bring a class-action suit against Google, demanding that their copyrights be honored and royalties distributed to writers whose books were available.

According to the terms of the settlement, snippets of copyrighted books still in print will be taken down. Books in the public domain will still be available. And in-copyright, out-of-print books will be scanned and added to the database. Regular users will only be able to search and view limited preview snippets. Once the subscription system is in place, both individual and institutional subscribers will be able to purchase access to those titles. The subscription fee will be distributed by the AAP and Authors Guild to copyright holders whose works are included in the registry—and Google will get a substantial 37% cut.

The legal question at the suit’s core is a common one—how do you define "fair use" online?  Had the case made it before a judge, it’s possible Google would have had to prove how searching and displaying preview-size snippets of copyrighted work constitutes fair use. And "fair use is at the core of Google’s operations," said Outsell lead analyst Ned May. "Even if they were 99% certain they’d win, that one-percent uncertainty weighted against their business model would make them cautious. It’s a fairly monumental decision that could impact across the entire business model." Any kind of legal precedent established in this case could have been put into play with the real billion-dollar gorilla currently in Google’s legal department, the pending Viacom lawsuit against Google acquisition YouTube.

While May calls the potential ad revenue "irrelevant" in the grand Google scheme, the new material added to Google Books is "the tip of the long tail—these are books that are no longer being published." Libraries across the country will be able to supplement their collections with volumes from the likes of the University of Michigan library by adding a Google Books terminal. Authors and publishers will reach a new audience with little effort, but Google co-founder Sergey Brin said in a press release, "the real victors are all the readers. The tremendous wealth of knowledge that lies within these books will now be at their fingertips."

Not everyone’s buying the altruistic line. Harvard University’s library, an early Google Books partner, has pulled out of the project, pending a closer look at how Google’s subscription model will work. Indeed, the settlement gives Google plenty of leeway in setting up and administering the subscription system. Will Google scan Harvard’s stacks, then turn around and charge them for digital access? As details emerge, libraries across the country will be looking carefully at Google’s plans for inserting itself into their collections.

If knowledge is power, then Google has just scored a key position as gatekeeper to an incredibly powerful resource. While they’ve finagled a way around a legal fair-use quagmire for now, Google knows its lawsuits won’t always have such amicable endings.