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Settlement Reached in the Google Books Suit

On October 4, 2012, the Association of American Publishers (AAP) and Google announced an agreement that will provide access to publishers' in-copyright books and journals digitized by Google for its Google Library Project.  The settlement ends seven years of litigation.

The agreement settles a copyright infringement lawsuit filed against Google on October 19, 2005 by five AAP member publishers.  The five publishers involved in the suit are: Simon and Schuster, McGraw-Hill, John Wiley and Sons, Penguin Group (USA), and Pearson Education.  In its suit, the publishers had sought a declaration that Google’s scanning was copyright infringement, as well as an injunction barring the digitization. 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.  (Note: See the EDUCAUSE blog on the Authors Guild suit for further information.)  According to AAP's press release yesterday, the settlement acknowledges the rights and interests of copyright-holders.  It goes on to say:

“US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project….Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works.”

Google Books allows users to browse up to 20 percent of books and then purchase digital versions through Google Play.  Prior to the agreement much smaller “snippets” of those works had been available through Google.  Under the agreement, books scanned by Google in the Library Project can now be included by publishers.

"It's now clear that we can choose to make our works available or remove them from the project," Tom Allen, President of the AAP, said. "We think this clarifies a lot. "Under the deal, publishers that do not remove their copyrighted material from the project can get a digital copy to use.

Both Allen and Tom Turvey, Google's Director of Strategic Partnerships, emphasized the practicality of the agreement.  "The e-book world has changed, and it made more sense to reach an accommodation," Allen said, noting that the parties had "agreed to disagree" on some points, including fair use. Turvey said that Google had many valuable relationships with publishers and wanted to take advantage of the opportunity to settle.

Further terms of the agreement are confidential and as the settlement is between the parties to the litigation, the court is not required to approve its terms.  The judge previously rejected a proposed settlement between Google and both publishers and authors in 2011, saying it overreached.  What is a key point here is that the author plaintiffs, led by the Authors Guild, have carried on the legal fight while the publishers focused on reaching terms with Google.

Google has been offering publishers the opportunity to sell digital books for years, and digitizing new books has become routine for publishers.  However under the settlement, publishers get the benefit of Google digitizing out-of-print books that they might not otherwise have turned into e-books.  Meanwhile, Google can expand the library of e-books it sells to consumers.

What is important to remember is that the settlement does not answer the question at the heart of the litigation between Google and publishers and authors — whether Google is infringing copyright by digitizing books.  It essentially allows both sides to agree to disagree, and gives publishers the right to keep their books out of Google’s reach.  Another important point is that the settlement does not address the difficult issue of orphan works — those works that are still under copyright but whose copyright holder or author cannot be found.

Much has been written both about the case and the settlement.  Further analysis and comment can be found on the blogs of Kevin Smith, Duke University, and James Grimmelmann, New York Law School, both of whom have written extensively on this case over its lifespan.

EDUCAUSE will continue to monitor and report on this issue.

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