The advent of mass digitization via Google Books has ignited a series of copyright-related actions filed by book publishers and authors. There are two issues: whether Google and the owners of affiliated digital libraries are entitled to a fair use defense for library use, including providing access to print-disabled individuals, and whether Google may display snippets of books in online searches. The resolution of the fair use questions debated in the two oral arguments this fall will have significant implications for library and online access to a wide range of works. There are three stories worth noting on this topic:
1. American Association of Publishers v. Google
In 2005, five publishers (Simon & Schuster, McGraw-Hill, John Wiley & Sons, Penguin Group, and Pearson Education) sued Google for copyright infringement, seeking injunctive relief. After 7 years of litigation, the publishers and Google settled privately in 2012. Because the settlement was between the named parties, the court was not required to approve its terms. The 2012 settlement allows publishers to choose whether or not to allow Google to digitize their books. If Google does digitize, it will also provide publishers with a digital copy for their own use. For books that have been scanned, Google allows users to access to 20 percent of the book online. In order for users to access the entire book, they must purchase it from the Google Play store, and Google will then share the revenue with publisher of that book.
The terms of the settlement, according to New York Law School Professor James Grimmelmann, “sound indistinguishable from the terms Google has offered to its print partners for years. If that’s all, it’s hard to understand why this deal took so long.” According to Paul Courant, University of Michigan Librarian and Dean of Libraries, “publishers who previously excluded works from the project now have an incentive to participate,” he says. “This reflects the complicated overlapping interests of libraries, publishers, and authors.”
However, the settlement is limited to five publishers and does not apply to any other publisher. Orphaned works, whose copyright holders cannot be identified or located, are not addressed by this settlement and remain an issue.
2. Authors Guild v. Google
In 2008, Authors Guild, Inc., an association of authors, brought a copyright infringement suit against Google for displaying snippets of millions of books online. The district court granted AG’s motion for class certification of authors residing in the United States and holding copyright interest. On July 1, 2013, the Second Circuit reversed the lower court, holding that until the lower court considers fair use issues, class certification is premature. On appeal, Google argued that plaintiffs would not be able to “fairly and adequately protect the interests of the class” because many members of the class may benefit from the Google Library Project. For example, access to a wider audience and sales in books by authors might increase through the project. The Circuit vacated the district court’s decision and remanded for consideration of the fair use issues.
Authors Guild-Google Settlement Rejected
In 2009, Google reached an initial settlement of the class action lawsuit that was valued at $125 million. After review, the settlement was subsequently rejected by the court in 2011. The settlement would have allowed Google to scan copyrighted books, allowing 20% of the text to appear, and sell them via Google Play. The copyright holders would have received 67 percent of the sale and Google the remainder.
But when it comes to millions of “orphaned works”, Google’s proposal went too far, U.S. Circuit Judge Denny Chin wrote. Under the deal, Google would be able to scan and sell titles when the rights holder could not be located and set aside proceeds if the author turned up later. In rejecting the deal, Chin emphasized that Congress should “establish a mechanism for exploiting unclaimed books.” The rejected settlement deal only applied to Google, leaving would-be competitors to get sued and forge their own deals. Consequently, Microsoft, Yahoo, and Amazon have joined in opposing the settlement. The three companies have joined the Open Book Alliance in order to raise “serious legal, competitive, and policy issues” surrounding Google’s book scanning project.
U.S. Circuit Judge Chin stated that the settlement gave “Google significant rights to exploit entire books, without permission of the copyright owners.” Arguing that the settlement did not take account of the interests of all of the class members, such as academic authors, Berkeley Law Professor Pamela Samuelson noted in a letter quoted by the decision that “Academic authors, almost by definition, are committed to maximizing access to knowledge. The [Authors] Guild and the [Association of American Publishers], by contrast, are institutionally committed to maximizing profits.”
3. Authors Guild v. HathiTrust
The Authors Guild filed its copyright infringement suit alleging that the HathiTrust, a digital preservation organization, was built with “unauthorized” scans by Google. HathiTrust is a repository of digital content from research libraries. The organization has a mission to make print materials accessible to the blind by offering print-disabled individuals the ability to read digital books through software that allows the text to be conveyed audibly or tactilely. The suit named HathiTrust and its five university-system partners — University of Michigan, University of California, Indiana University, Cornell University, and University of Wisconsin.
In 2012, Judge Harold Baer Jr., ruled that the project’s scanning and use of copyrighted works qualified as fair use under copyright law. In his opinion, Baer noted the “unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers” was a key transformative use of the scans that brought the project under the fair use exception.
The Library Copyright Alliance applauded the decision, noting that “Judge Baer’s ruling not only allows HathiTrust to continue serving scholars and the print-disabled; it also provides helpful guidance on how future library services can comply with copyright law.” Judge Baer’s decision, however, also left open the question of “orphan works,” those whose rights-holders cannot be identified or located. HathiTrust and University of Michigan’s library set up an Orphan Works Project (OWP) in order to sort the copyright status of unknown works. Authors Guild has criticized the program because “the temptation to find reasons to release these digitized books clearly remains strong” despite the efforts of OWP.
Authors Guild executive director Paul Aiken stated “the court’s decision leaves authors around the world at risk of having their literary works distributed without legal authority or oversight.” The case is currently on appeal before the Second Circuit; oral argument was held on October 30, 2013. Numerous organizations, including Association of American Publishers (AAP), Associated Press, Motion Picture Association of America (MPAA), and American Society of Journalists and Authors, have filed amicus briefs arguing against allowing mass digitization of copyrighted works.
On September 23, 2013, oral argument was heard on cross motions for summary judgment in Authors Guild v. Google. Authors Guild attorney Ned Rosenthal argued that Google Books project raises concerns that are distinct from library use. Rosenthal stated that judge Chin should “evaluate the case not based on how users use Google Books, but by how Google uses the corpus of scanned works—as a commercial advantage for its search engine competitors, without having paid copyright owners.”
In response, Judge Chin stated that the transformative benefits of improved research such as data mining and as a resource helps users finding a book on Google and buying it. Judge Chin also noted that Judge Harold Baer had already found library copies to be fair use in HathiTrust. The outcome of the HathiTrust appeal, currently in deliberation after the October 30 hearing, is likely to inform Judge Chin’s decision. However, a decision may come before that, as Judge Chin probed parties about whether a trial was necessary, stating that he was hoping to end the matter with a summary judgment ruling on the fair use question.