It’s over—at least for publishers. The Association of American Publishers (on behalf of five named publisher plaintiffs) and Google today announced they have settled their long-running litigation over Google’s library book scanning. According to a statement from the AAP, Google is said to “acknowledge the rights and interests of copyright-holders,” and U.S. publishers can “choose to make available or choose to remove their books and journals digitized by Google for its Library Project.”
In addition, under the details released, publishers deciding to have their scanned works included in the Google database can opt to receive a digital copy for their use. Google director of strategic partnerships Tom Turvey told PW that publishers will own the scans provided to them by Google, and will have “broad” rights to commercialize them or make them available in other search engines.
It is unclear if there was any payment involved, whether for legal fees or otherwise, as further terms of the agreement are confidential. Since the deal is a private settlement, the parties confirmed, there will be no public settlement document, and it does not need to be approved by the court.>
Nevertheless, the deal, in which the publisher suit is now dismissed, appears hardly worth such a lengthy court fight. "The publicly described terms sound indistinguishable from the terms Google has offered to its print partners for years." New York Law School Professor James Grimmelmann observed. "If that's all, it's hard to understand why this deal took so long."
Indeed, the deal comes after nearly seven years of litigation, including three years of stumping for a controversial settlement, which was rejected by Judge Denny Chin in March, 2011. In its suit, the publishers had sought a declaration that Google’s scanning was copyright infringement, and an injunction barring the activity. Google countered that its scanning was fair use. The suit was later joined with a similar suit that had been filed by the Authors Guild. The Authors Guild litigation, meanwhile, is ongoing, although it has been stayed while the Second Circuit considers an appeal of Judge Chin’s decision to certify the case as a class action. Authors Guild executive director Paul Aiken was clear that the guild suit is not affected by the deal with the publishers. "The publishers' private settlement, whatever its terms, does not resolve the authors' copyright infringement claims against Google. Google continues to profit from its use of millions of copyright-protected books without regard to authors' rights, and our class-action lawsuit on behalf of U.S. authors continues," Aiken said.
At first glance, where does this settlement leave things after seven years of expensive litigation? For publishers, it is a retreat from their initial claims. Google has always allowed copyright holders to opt-out of its scanning program, but publishers argued that Google's “opt-out” policy “turns copyright on its head” because it put the burden on copyright owners to act, rather than on Google to seek permission. Google, meanwhile has always argued that it respects copyright, but that it was simply not feasible to seek permission for millions of copyright owners, many of whom are not locatable, for the purposes of a creating an index.
The retreat, however, is clearly the practical course. Much has changed in the e-book market in the seven years since the lawsuit was first filed. For one, the chaos publishers predicted has not happened. Google has kept on scanning and indexing—and the sky did not fall. E-book commerce, at the same time has matured with a proliferation of e-readers and platforms—including Google Books, which allows users to browse up to 20% of books and then purchase e-books through Google Play.
“Basically when the case was filed seven years ago, that was a long time ago, and the world has changed a lot,” AAP president Tom Allen told PW. “After Judge Chin rejected the settlement there was some thought to trying to revive this as a class action, but we really couldn’t come to an agreement, so we went back to the original lawsuit, which was not a class action, and basically worked out an arrangement that doesn’t resolve the legal issues. We agree to disagree on those, but as a practical matter, it does resolve our differences with Google.”
At the time of the lawsuit, while there was a Google partner program, there was no Google “bookstore.” Now, under the settlement agreement, millions of long out-of-print books scanned by Google via its Library Project can be included in Google Play, turning what may have looked like a potential threat at the time, into a potential moneymaker.
“We much pefer to innovate than litigate, especially with important partners so it was important to put this litigation behind us for that particular reason,” Turvey said. “In terms of new books that users will get access to, to take a book that has been long out of print and have a publisher provide for display or sale will mean there are going to be many more books on the current e-book market than were there before and that probably would have no other way of getting there.”
Where this settlement stands as a huge win for Google, however, is on the orphan works question—if a work is truly orphaned, then no copyright owner can come forward to have it removed, thus, under this deal, Google gets to keep orphan works in its database.
Of course, barring a settlement with the Authors Guild, the fair use questions at the heart of the Google program could still be adjudicated by Judge Chin. And, currently, Judge Harold Baer in New York’s Southern District, is preparing to rule in a parallel case filed by the Authors Guild against the HathiTrust, a coalition of research libraries.