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Authors Guild v. Google, Inc. (Google I), 770 F.Supp.2d 666 (S.D.N.Y. 2011) (full-text).
Factual Background Edit
In September 2005, the Authors Guild and a group of authors filed a class action lawsuit in the Southern District of New York, asserting that the Google Books project amounted to willful copyright infringement. Several publishers filed a related action against Google in the same court later that year.
Settlement Proceedings Edit
In October 2008, the authors, publishers, and Google reached a settlement agreement, which they filed for approval with the court pursuant to Federal Rule of Civil Procedure 23. After a large number of objections from various individual authors, stakeholder groups, and foreign governments, the parties filed an amended settlement agreement in November 2009.
Under the amended settlement, Google could scan, digitize, and exploit out-of-print books through a number of new business arrangements unless the relevant copyright owner opted out. These business arrangements included online access, use of the books in subscription databases, and use of advertisements in connection with these services. The settlement also proposed to establish a "Book Rights Registry" that would maintain a database of rights holders and administer distribution of revenues from exploitation of the scanned books. Google would provide payments to the Registry on behalf of rightsholders and, in turn, the Registry would distribute the funds to registered rights holders. If no rightsholder came forward to claim the funds after a certain amount of time, the funds could be used to cover the expense of searching for copyright owners or be donated to literacy-based charities.
The United States filed a "Statement of Interest," acknowledging the "worthy objectives" of creating such a licensing framework, but noting that even as amended, the agreement would "confer significant and possibly anticompetitive advantages on a single entity — Google."
In March 2011, Judge Denny Chin rejected the amended settlement agreement. The court recognized that "the benefits of Google's book project are many," including making books more available to "[l]ibraries, schools, researchers, and disadvantaged populations," facilitating access for persons with disabilities, generating new audiences and sources of income for authors and publishers, and preserving older books currently "falling apart buried in library stacks." Nevertheless, the court determined that the proposed settlement would inappropriately implement a forward-looking business arrangement granting Google significant rights to exploit entire books without permission from copyright owners, while releasing claims beyond those presented in the dispute.
The court also expressed concern over the settlement's treatment of orphan works, concluding that the "questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards, are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Citing U.S. Supreme Court precedent, the court also affirmed that it is "Congress's responsibility to adapt the copyright laws in response to changes in technology."
In October 2012, the five major publisher plaintiffs settled with Google. According to public statements about the settlement, the publisher plaintiffs will be permitted to choose whether or not to include digitized books in the Google Books project. Further details of the settlement have not been made public. Notably, the settlement does not require formal court approval because it only resolves the claims of the specific publisher plaintiffs. The settlement does not affect claims made by the Authors Guild or non-parties to the lawsuit. Therefore, the settlement would not address orphan works in which copyrights are owned by anyone other than the publisher plaintiffs.
- ↑ The amended settlement agreement covered photographs and other pictorial works contained in books only where a party holding a copyright interest in the image also held a copyright interest in the book. See American Settlement Agreement §§1.13, 1.75, Authors Guild, Inc. v. Google Inc., No. 05 Civ. 8136 (S.D.N.Y. Nov. 13, 2009). A "Copyright interest" was defined to include an exclusive license, id. §1.41, and therefore the agreement apparently would have permitted Google to display illustrations that had been exclusively licensed to the copyright owner of the book in which they appear.
- ↑ Id. at 671-72.
- ↑ See Authors Guild v. Google (Google I), 770 F. Supp. 2d at 666.