Vviewpoints
DOI: 10.1145/1785414.1785429
Legally speaking
should the Google book
settlement be approved?

Considering the precedent that could be established by
approval of the controversial Google book settlement.

The CoUr TrooM was packed for the long-awaited hearing about the proposed settle- ment of the Authors Guild v. Google lawsuit on February 18, 2010. Class action lawsuits cannot in the U.S. be settled without a judicial determination that the proposed settlement is “fair, reasonable, and adequate” to the class on whose behalf the case was brought.

Judge Denny Chin heard five hours of oral argument about the proposed settlement not only from lawyers representing Google, the Authors Guild, and the Association of American Publishers (AAP) who negotiated it, but also from the U.S. Department of Justice (DOJ), five non-party supporters, and 21 objectors or opponents, of which I was one. Judge Chin announced at the outset of the hearing that he would not rule on the matter that day.

Because the DOJ has spoken out strongly against the settlement—along with the governments of France and Germany and hundreds of others from the U.S. and abroad—the settlement is facing an uphill battle. An appeal seems likely; so whatever Judge Chin decides, the case is far from over.

This column describes the genesis
of the lawsuit and reasons the pro-
posed settlement is so contentious. It
presents my argument that the settle-
ment should not be approved without
substantial modifications to address
concerns of academic authors whose
books will make up a substantial por-
tion of the Google Book Search (GBS)
corpus of out-of-print books that
Google would be able to commercial-
ize if the settlement is approved.

the Authors Guild Lawsuit and
the Proposed settlement

In the fall of 2005, the Authors Guild and three of its members sued Google for copyright infringement because Google was scanning in-copyright books from the collection of the University of Michigan Library. The Guild members claimed to represent the interests of a class consisting of persons holding a U.S. copyright interest in one or more books in Michigan’s library. Five trade publishers brought a similar suit one month later.

After 30 months of negotiations, the litigants announced in October 2008 a proposed settlement of the now-com-

What should be done
about orphan works
is a public policy
issue that should be
decided by congress,
not private parties
or the courts.

bined lawsuits. The class on behalf of which the litigants now propose to settle consists of all owners of U.S. copyright interests in books published in the U.K., Canada, and Australia and books registered with the U.S. Copyright Office.

The only issue in litigation in the Authors Guild case is whether Google’s scanning of in-copyright books for purposes of making snippets of their contents available in response to Google Book Search (GBS) user queries is copyright infringement or fair use.

If the settlement resolved only that dispute (for example, with Google offering $60 per book for past scanning in exchange for a license to make snip-pet-displays), approval would almost certainly be granted.

The settlement is controversial because it would give Google a license to commercialize all out-of-print, but still in-copyright books owned by class members as long as Google provides 63% of the revenues from its commercialization efforts to a newly created Book Rights Registry, which would be charged with locating rights holders and paying them money from Google’s commercialization of their books.

At first blush, the GBS settlement looks like a win-win-win. The public would get access to up to 20% of most out-of-print books in response to user queries and full text access in public libraries and higher education settings, either through public access terminals or institutional subscriptions to a database of millions of out-of-print