Background

What is Google Books? The Google Books Project was started to make a digital library of printed sources available to the masses through the Internet. Google scanned in millions of books from libraries and universities around the world to create an online library that anyone can access online. A high proportion of these books are no longer in print and unavailable for purchase. Users can search key words and phrases as they would using the Google search engine, and Google Books will display printed resources with corresponding matches. For books in the public domain, users can download a pdf of the book for free; otherwise, the books’ contents are limited to a few pages that contain the search criteria. Useful information such as ISBN number or where to purchase the book is also available.

Problems posed by Google Books

While most will agree that there is nothing wrong with the inclusion of out-of-copyright books in the Google Books digital library, significant debate arises when considering books not in the public domain. As early as 2004, when Google announced that it would be digitizing books still under copyright, author associations voiced their opposition to these plans.

Brief Timeline

Due to the disgruntlement of authors and publishers, Google faced two lawsuits concerning Google Books in 2005. In the case of Authors Guild vs. Google , the Authors Guild accused Google of blatant copyright infringement at the expense of authors. According to the Authors Guild, Google was at fault for not only scanning in books under copyright and making their contents available without authorization, but also for profiting from the resulting consumer traffic and advertising revenues. The Guild demanded compensation for losses as well as ceasing of further infringement. In the case of McGraw Hill vs. Google, the Association of American Publishers made similar allegations , claiming that Google was violating copyright law by neglecting to seek permission from copyright authors before scanning their published works and using them to generate revenue.

In 2006, negotiations betwen Google and the Authors Guild and the AAP began. By the end of 2008, the parties proposed a Settlement Agreement. The Agreement released Google from liability due to its digitization of books not in the public domain. Google would be allowed to make up to 20% of a printed resource available for users to preview; users would also have the option to purchase the book. In exchange, Google would first pay $125 million to rightsholders, publishers, and lawyers as compensation for losses. Additionally, part of the money would also go toward establishing a Book Rights Registry to appropriately distribute Google revenues to rightsholders. Specific revenue models that Google could use to profit from the project were also detailed.

After a cautionary briefing by the Department of Justice, which suggested that the initial settlement would violate US anti-trust laws, an amended settlement was put forth in 2009. Under the amended version, the settlement would only apply to books copyrighted in the US, UK, Canada, and Australia. In the case of unclaimed works, the Book Rights Registry must search for the rightsholders and set up a fiduciary to act on their behalf and protect their interests. Google would also be obligated to ensure that rightsholders continue to receive their share of revenue in the event that their works are distributed by commercial book retailers. The amendment provides more flexibility in how books can be accessed by users online; it also allows rightsholders to negotiate with Google regarding book previews. Finally, the revised settlement clarifies Google’s book pricing algorithm and gives the Registry freedom to license unclaimed works to other parties without first making the offer to Google.

Despite efforts to appease the courts, the Google Books settlement was rejected by federal judge Denny Chin in March of 2011. Chin, while acknowledging the benefits Google Books could provide to the public via the agreement, ruled that it went beyond settling the legal dispute regarding copyright infringement. He believed that the terms of the settlement gave Google powers that would result in a monopoly over unclaimed books, as well as an increasingly unfair advantage over its competitors in the online search industry.

Currently, the future of the Google Books Project is unclear. Authors, publishers, and Google continue to discuss possible solutions to the ruling. Some are in favor of a renegotiated settlement while others favor alternatives such as working toward revisions in copyright and antitrust laws, or even the creation of a digital public library. Google has pledged to continue scanning books and making them more accessible to users online, but the extent to which legal issues will hinder their efforts may prove to be major determinant of its success.

Relevant Copyright Laws

The main debate over copyright infringement relevant to the Google Books project concerns whether the way Google allows access to copyrighted material is in line with the legal code’s definition of fair use. The legal code stipulates that reproduction of a copyrighted work is not a violation of copyright infringement, depending on the nature of the reproduction. Factors that determine whether or not the use of the work is fair and legal include the purpose of the reproduction, the nature of the work, the amount of the work used, and effect of the reproduction on the work’s market or value. As a result of these imprecise terms, both Google and its opponents can reasonably claim that Google’s reproduction of copyrighted work is fair and unfair, respectively. There is no clear winning party based on the literal meaning of the legal code alone.

Relevant Anti-trust Laws

Although anti-trust laws played a role in Judge Denny Chin’s decision to reject the Google Books settlement, technically anti-trust code is not directly related to the case at hand, which strictly involves copyright infringement. The extent to which anti-trust laws are or are not violated by the settlement is another case in its own right and will not be discussed here.