Seven years ago, the Authors Guild and several major publishers (including McGraw Hill, Penguin, and John Wiley) filed suit against Google for its unauthorized scanning of in-copyright books. The AG and publishers claimed that the scanning was a violation of copyright, since permission from the rightsholders to create a new book format hadn’t been sought. Google argued that the scanning wasn’t a new format at all, but fair use of an existing format.
A controversial settlement to the suit was crafted by the AG and Google in 2009–and rejected by the court in early 2011. Since then, the parties have been dancing around each other, with motions and counter-motions as the litigation drags on.
While the AG has stood firm in its commitment to the suit, it’s long been rumored that the publishers were considering a separate settlement. Now rumor has become fact. On behalf of the litigating publishers, the Association of American Publishers announced yesterday that a settlement had been reached.
In its statement, the AAP says that
The settlement acknowledges the rights and interests of copyright-holders. US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.
Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works.
Other terms of the settlement are confidential. Since this is a private settlement between the parties, the terms don’t have to be disclosed or approved by the court.
This, of course, leaves a raft of questions unanswered. The publishers can remove the Google-digitized books if they don’t want them included–but what options do authors have? What about orphan works? Will Google be able to sell the digitized books–and if so, what share will publishers receive, and will authors benefit? The contracts for many of the books are pre-digital, and don’t incorporate electronic rights–so should publishers have any control over the digitized books at all, much less receive a digital copy “for their own use”?
In a blog post at PW, Peter Brantley notes that these digital copies may be of limited utility due to the nature of Google’s scanning. Even so, the settlement gives the settling publishers–and non-settling publishers, if they follow this same model in negotiating with Google–control of something they arguably shouldn’t be able to possess, and appears to leave authors out of the equation. James Grimmelmann, a copyright expert and one of the most objective commenters on the Google litigation, worries that “Google is going to increasingly use the consent of the publishers as an argument that the authors don’t even speak for copyright owners.”
As many commenters have noted, this is a fizzle of an ending for such a lengthy litigation. It leaves Google’s status unchanged, and doesn’t seem to give the publishers anything they didn’t already have (since Google always allowed rightsholders to opt out). The publishers have basically walked away from the legal issues involved–which may reflect litigation fatigue, but also is an acknowledgment of how much the digital marketplace has changed over the past seven years. When the suit was filed, the value of digital rights was still a subject of debate. That’s no longer the case. As Andrew Albanese points out in PW’s coverage of the settlement,
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.
A moneymaker for publishers. But what about authors?
The settlement doesn’t affect the Authors Guild’s class action litigation against Google, which is proceeding.
You know, I don't mind having a PORTION of my books scanned and made available – after all, it's sort of like the 'look inside' feature, or reading the first couple of pages in the bookshop. However, I massively disagree with the entire book being scanned and I feel that, as an author, I should have some say in whether that can happen or not. After all, if folks can read my books for free then I'm not making a living.
Besides which, if Google succeeds in breaking copyright protection, other search-engine companies will follow suit. Why should they let Google have the competitive advantage of all that rich, extra content, if it is proven other companies can also seize it for themselves with no impunity?
Marion–I'm definitely concerned about monopolies in bookselling, but weakening the protections of copyright for the sake of breaking a monopoly is not the way to go. One of the things that concerns me here is the potential for re-defining copyright through common practice, rather than legislation–especially where, as in this case, the practice is in opposition to one of the basic tenets of copyright law (that copyright is an opt-in, rather than an opt-out, system).
I really hate it that so much of being an author these days is "Well, [x] is bad, but at least it's not as bad as [y]." When we have to define our profession in terms for what's less bad for us, as opposed to what's good for us, we're in trouble.
Google does not have a right to post on the web, books that were not put there by their owners. This is not something that needs to be "clarified."
Second, books ARE listed in Google. I only publish by offset printing, no e-books, and my titles appear in numerous Google searches, for my own website, bookstores that sell them, and blogs that mention them.
Third, if the entire contents are available free via searches, why would anyone bother to buy the book?
Four, publishers are not dominated by Amazon. My nine books are carried by Ingram, who sells them to Amazon and numerous other bookstores. I also do some sales direct to retailers.
Five, there is no reason copyright holders should be forced to "register" with Google to avoid having their rights seized. In addition, it is unlikely that Google would pay any attention whatever to such registration. They already set up a database for copyright holders who did not wish their books scanned. First, the database page promised the books would not be scanned. Then that changed (without notice) to, Google would "try to" avoid scanning the books. They scanned lots of those books anyway.
Six, one reason the suit has been delayed is that one of the senior attorneys working for the Author's Guild has died. See http://www.laboratorium.net.
Google needed this suit in order to establish that they had the right to make books searchable, as they do with websites and images. Those previous rulings laid down a clear precedent, and they would have won that right.
In order to force a lawsuit to clarify that, they had to do some other thing that would be totally unacceptable.
They've got part of what they want in this settlement, but they still need the ruling. I don't think they'll settle with the AG.
What does this do to or for us? It gives us a way to break Amazon's stranglehold on ebooks and online bookselling.
Amazon is a real threat as well as extremely useful. They've been pushing vertical integration (the print with CS or lose your buy button threat comes to mind), and they show no sign of slowing.
Google is already where "everyone" goes to search. If finding books on Google is as easy as finding them on Amazon, at least non-fiction publishers and authors will be able to sell directly to consumers, giving an alternative to Amazon, and reducing their monopoly power.
Even for fiction, it will be a useful way to connect with readers.
In short, I'm not sure that this is the bad news, although it certainly would have been when the suit started. But the book business has changed rather a lot since.
Yes, we're going to have to get used to registering our rights with Google as well as with the Copyright Office and LOC, but we may also find that this enables us to sell micro-grants of those rights. And that, too, may turn out to be a good thing.
I'm cautiously optimistic.
Thanks a million, Authors Guild. I had plans for that $150 I was gonna get from the original settlement plan.
Pandora's publishing platform, now open game to BK publishers, dead poets and everyone who doesn't hire counsel to scream. Google has been honorable about taking down works at publishers and author's request but ask yourself what else do they profit from scanning the rope ladders of content? It goes also to privacy rights. Setting aside Google (a massive international information power broker); there is little an individual poet can do to stop pirates in general. Everytime I send the legal request to take something down, up pops a new website. Lawsuits only help the suits.