It’s Official: DOJ Investigates Google Book Settlement

Yesterday, the US Justice Department confirmed that it is opening a formal investigation into the Google Book Settlement.

A quick recap: Several years ago, Google entered into agreements with a number of libraries to scan the books in their collections. The books were then listed online via Google Books, along with publishing info and, for books still in copyright, limited “snippets” of text (for public domain books, the entire text was available). Claiming that the scanning was fair use, Google argued that it didn’t need to seek copyright holders’ permission first. Authors disagreed, and in 2005, a group of publishers and the Authors Guild filed suit to stop the scanning.

Last October, the parties in the suit reached a settlement–a mind-numbingly complicated arrangement that, depending on whom you ask, is either the first step toward a universal world library or the next step in Google’s quest for world domination. Much like desperately ill patients forced to research their own health care, authors were faced with the prospect of taking a crash course in Googlenomics in order to decide whether to opt in to the settlement–in which case they’d receive a small amount of money for Google’s use of their work, but potentially give up a good deal of control of that use–or opt out, in which case they would get no money and potentially lose all control.

Originally, the deadline to opt in or out was May 5, 2009. But, responding to a petition from a group of authors, Judge Denny Chin of the U.S. District Court for the Southern District of New York extended the deadline to September 4. Along with increasingly vocal opposition to the settlement from a variety of groups, the delay seems to have spurred the interest of the Justice Department. Over the past couple of months, there’ve been reports that the DOJ has been contacting Google and publishers with questions about the settlement.

Now it’s official. Judge Chin, who issued the deadline extension, has released the letter he received from the DOJ, along with his order that the government present its findings by September 18, 2009 (ahead of the settlement’s October 7 fairness hearing). The letter begins:

The United States writes to inform the Court that it has opened an antitrust investigation into the proposed agreement between Google and representatives of publishers and authors which forms the basis of a proposed settlement of a pending class action in The Authors Guild Inc. et al v. Google Inc., Civil No. 1:05-CV-8136. The United States has reviewed public comments expressing concern that aspects of the settlement may violate the Sherman Act.

There’s no way to know what the investigation will reveal, or whether the settlement will stand, change, or be struck down as a result of the fairness hearing. But whatever happens, the deadline for authors to opt in or out falls before both the DOJ deadline and the fairness hearing–which means that authors must decide on the basis of the current settlement terms. Authors absolutely owe it to themselves, therefore, to be as informed as possible, so they can make the best possible decision–whatever that decision may be.

If you’re tempted to do nothing (which I suspect many authors will be, given the complexity of the settlement and the issues surrounding)–resist. As in the health care metaphor I used above, doing nothing is the worst of all possible worlds, since, if the settlement does stand, you will gain neither the possible benefits of participation (which include the right to tell Google to remove your books from its database), nor, if you decide to opt out, the moral satisfaction of giving Google the finger.

To assist with the decision process, I’m re-posting some of the resources I compiled in an earlier discussion of the settlement, along with a few others I’ve found since. These are resources that I personally found helpful; I hope you will too.

– The Google Book Settlement website.

What the Google Book Settlement Means for Authors and Publishers–An admirably clear and concise (given the complexity of the settlement) summary of the settlement’s key points from Joy R. Butler. I guarantee you’ll find something here you didn’t know.

– From the Ashley Grayson Literary Agency, a guide to your options under the settlement and how (and whether) to exercise them.

– From the Dear Author blog, a roundup of info on the settlement plus links to more articles.

The Google Book Search Settlement: Ends, Means, and the Future of Books: A thoughtful summary of issues of concern–including the huge control over orphan works Google could gain from the settlement–from James Grimmelmann of the American Constitution Society.

– Law professor Pamela Samuelson discusses the orphan works issue, as well as the potential monopoly the settlement may give Google, in The Dead Souls of the Google Book Search Settlement.

More on the potential Google monopoly from Cory Doctorow at BoingBoing. The comments are interesting as well.

– From the Books and Corsets blog, a summary of a Columbia Law School-sponsored symposium on the settlement. Worth reading, because it highlights some issues that other sources don’t seem to have picked up on.

– Mike Shatzkin has questions about the distribution of revenues generated by the settlement.

– An article in Time magazine details librarians’ concerns about the settlement.

– The other side, from (respectively) readers’, researchers’, and publishers’ perspectives: a defense of the settlement from columnist Mark Gimein, another from John Timmer at Ars Technica, and another from Tom Allen of the Association of American Publishers.

– And finally, for the technophiles among us, NPR reveals details of Google’s patented scanning process.


  1. Thanks, Victoria. My list of story and essay contributions to books (other than my own collections) currently runs to 158 items. Not a huge number, but my heart sinks at the thought of checking them all.

    You need to look at every edition of a book, since the Google report "Digitized without authorization." appears only in the "Details" page for the specific ISBN/edition they used.

  2. David, thanks for your comment. Given how complex all of this is, I found the settlement site surprisingly easy to use (though as you say, a lot of clicks). But since there doesn't seem to be another Victoria Strauss with published books, I think I may have had an easier time of it than others.

    My stepmother, who is a prolific author and also the executor of two literary estates (her father, who wrote more than a hundred books, and my father, who wrote several books and scores of articles) has an appalling task in front of her.

  3. I hope it's OK to adapt a Facebook note about my own exploration of the GBS site, which may be of interest.

    What I expected: some kind of search that would show me any Langford books that have been digitized by Google.

    What I got: a search facility that unearthed heaps of books — including reprints, foreign translations, stuff by other David Langfords and a "book" called Ansible that the computer rather thinks I published in 1979. Logically, you'd expect this list to include a checkmark against each work that's been digitized by Google. But no!

    Next you have to plod through the whole list fiddling with multiple buttons to assert your "claim" to be the author of each separate book. Finally, reaching the end of this weary task, you move on to a new table view of all the claimed books. Logically, if somewhat belatedly, you'd expect this view to include a checkmark against each book that's been digitized by Google. But no!

    In fact you have to click in succession on every damned book to bring up a "Details" page for each. This, at last, reveals "Digitized without authorization." or "May be digitized on or before May 5, 2009 without authorization." (you'd think a two-month-old status would be known by now) or "Not digitized, and will not be digitized on or before May 5, 2009, without authorization."

    After much clicking on a great many different editions of the Complete Works, I believe I have just three in the interesting category (the first). It would have saved a great deal of time if Google allowed users to filter the list on this basis …

    Am I paranoid to suspect that perhaps they don't want it to be too easy?

  4. I am just discovering this for the first time, having received a notice of it in the mail. I see I have a lot of reading and studying to do. It's certainly a sticky problem. Having been involved with detailed negotiations between contracting parties in other situations gives me a deeper understanding of the possible complexities that are being encountered. Relegating this to only books in the Public Domain would put the database back by 55 years and more. I am glad the US DOJ is looking into this problem. How is it that the Authors Guild can represent strangers? I will no doubt have many more questions as I get deeper into this. I will keep you updated on my progress and results. Thanks for writing about this, and providing those helpful links.

  5. I suddenly find myself very glad that I haven't been published prior to this investigation. If I had been, I'm terrified that I might have ended up like the disenfranchised writers who have already commented.

    Works that are already considered as being within "public domain" are the ONLY publications that Google should be offering for free. This is ridiculous.

  6. I really don't understand how an organization I don't belong to can claim to represent me in a settlement that honestly stinks to high heaven. I didn't agree to take part in this, and yet they can enforce this on me?

    It's amazing how tech people like the Google gang feel so free to just take other people's intellectual property without permission. They'd be screaming threats of lawsuits if someone took their software and published it in part or whole on the web for anyone to look at.

    Work that's out of copyright, I can understand, but the works of living authors that will be under copyright for years and years yet?

    I hope the DOJ stomps on Google hard, and fast, too.

  7. Jane, I haven't found anything to answer that question. I just don't know.

    I plan to write a much more detailed post about this closer to the opt in/opt out deadline, but my feeling right now is that, while I really would love to opt out and have no part of the settlement, if I want to maintain control over how Google uses my work, I have no choice but to opt in. If I opt in, I can at least direct Google to remove my books from the database. If I opt out, Google will also remove my books–for now. Google is currently "voluntarily" removing opt-outers, but there's nothing in the agreement to bind them to that, or to prevent them from changing their mind and putting me back in. There's also the issue of what happens to books published after May 5, 2009 (the settlement only extends to that point in time). If you opt out, will you have any control over what Google does with the books you publish in the future?

    As I understand it, the settlement, which is strictly with the US book industry, mostly affects US writers, but if you're a European writer who has published in the US, or has a book in the collection of a US library, you will also be affected. And apparently, many books by European rights-holders have been scanned.

    Also, if the settlement is allowed to stand, you can bet that Google will be pursuing similar agreements with European publishers. So whether you're in the US or Europe, this is an issue it's wise to know about. In the meantime, the EU is also investigating the settlement.

  8. Victoria, I'm afraid I am lost here. I've read so much about this that I don't know where I, or other writers, stand in relation to the GBS.

    If a writer opts out, can they then opt in again at some point, or vice versa? Or is the opting a once-only option, which we'll be stuck with in perpetuity?

  9. Patience, the settlement applies to all US authors with published, in-copyright books.

    Deb, in addition to the books Google has scanned without permission, many are listed by permission of the publisher, or sometimes the author if the book is self-published. One way to tell is that the books Google scanned without permission only have "snippet" views available, while books scanned with the publisher's permission have 20% or more available. (This applies to in-copyright books. Books in the public domain are available in their entirety).

    Was your dictionary work-for-hire? In that case, you never owned the copyright. If it wasn't work-for-hire, however, no one but you should be able to claim the book. Check your contract, and see what the Grant of Rights says. Feel free to write me about this:

  10. I found my book – a dictionary – on Google Books. I was crushed. They display a minimum of 20% of the work. I tried to sign in to Google to exert some control, but someone else (my publisher, I assume) has claimed the copyright. By that point I was too depressed to even research it further.

  11. Oh dear. I just found my book on Google books. I had no idea.
    Does this still apply to me? Or did the authors have to be named in the settlement?

    Thank you for bringing this to my attention.



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