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