Authors: Luis Aguilar, Ajeeta Dhole, Kate Hsiao, Matthias Jaime, Lisa Jervis
This week publishers and Google reached a settlement in the long-running copyright infringement case, according to Wired.com.
Google Books, formerly known as Google Print, is a service from Google Inc. that searches works that Google has scanned and stored in its database. Back to 2005, writers and publishers sued Google, claiming that digitizing the world’s books was an infringement of copyright. However, Google claimed that scanning and indexing the copyrighted works without the copyright owners’ consent should be seen as fair use.
After years of debate, the settlement with Google and the publishers finally turned out. The settlement allowed the U.S. publishers to choose to make available of or remove their works in Google Books. When it comes to the selling on the Internet, the rights holders will get 67 percent of the take and Google gets the remainder. (The dispute with authors is still outstanding.)
Why It’s Important
The most immediate consequence of this settlement is that it will allow Google to start selling digitized books on Google Play and display 20 percent of the text . The agreement will include works from some of the biggest names in publishing including McGraw-Hill Companies, Pearson Education, Penguin Group, John Wiley & Sons and Simon & Schuster. For consumers and copyright holders then, it would seem this result will be mutually beneficial.
However, this settlement is an extension of a previous agreement rejected in Federal courts last year. In that agreement, the issue that led to government intervention regarded orphan works, books whose copyright holders cannot be found. Under the original settlement, Google had claimed orphan works are too available under fair use and would index and make them available for sale online. Judge Chin who oversaw the settlement disagreed, stating, “the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.” (pdf)
With this new settlement, the issue of orphan works is still not resolved, nor are Google’s claims to access copyrighted books under fair use. Fair use is defined as the use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, and it is not an infringement of copyright. It remains to be seen if Google can successfully claim its actions comply with the court’s interpretation.
Why the Google Settlement is Bad
Though it doesn’t carry the weight of law or legal precedent, the overall message
of this settlement is that Google is an 800-pound gorilla that can successfully
leverage illegal tactics to make business deals. Perhaps even more important, their
contention that the Library Project scanning was fair use will not be tested in court.
And the fair use argument here is unconvincing: Section 107 paragraph (1)’s test
of purpose of copying is not met; adding massive amounts of valuable copyrighted
content to its search results clearly serves a business purpose (this contention is
buttressed by the part of the settlement deal allowing Google to sell the digitized
works in the Play store). Neither is paragraph (3)’s metric of the amount of work
used; a strong argument can be made that twenty percent of a book is a substantial
portion. Paragraph (4), concerning effect on the market, also poses a problem
for Google’s argument, a providing that much content for free surely diminishes
An actual court test of this argument would have been helpful for copyright holders
to maintain their rights to control their content when that control is under constant
threat by the fast pace of technological change. If decided properly, it would have
established a legal environment that encourages content-sharing partnerships
negotiated up front, rather than an approach that rewards infringement with a
better negotiating position.
Why the Google Settlement Is Good
While the publisher-challenged “fair use” scope of the lawsuit may have been too broad since it included any book types, we cannot disregard the helpfulness of Google’s scanning and indexing technology for one very specific fair use purpose: education. Without such indexing, if (for example) a specific difficult programming concept emerged, a student generally has only had the class’s assigned book to aid in understanding the concept. If the book doesn’t help, it is a tedious process to find other reference material due to the specificity of the concept, the lack of adequate search capability for reference material, and cost. 17 USC § 107 states “…the fair use of a copyrighted work, including such use by reproduction in copies…for purposes such as…scholarship, or research, is not an infringement of copyright.” Google’s scanning project provides a technology whereby it not only becomes easier to find more relevant material because of the more powerful indexing and breadth of what’s available, it also allows review of reference introductions and indexes which will give a much better indicator as to the depth of the explanations and audience level. This is not to concede that Google’s “fair use” defense is a valid one, since their scanning and indexing technology was created to bust into the e-book market like Kool-Aid Man into a late ’70s living room. But it is a strong defense of their technology, which replaces woefully inadequate methods that help students find relevant material that crosses business, library and publisher borders.
While the settlement has broad implications in the overall message that it conveys, it is important to recognize that this particular settlement is only limited to the works of select publishers that are party to the settlement. (The dispute with some authors, through the Author’s Guild, is still ongoing.) It allows Google to continue digitizing works of the said publishers, gives the latter the option of not making their works available to Google, and possibly establishes a business contract between the two parties that allows both to commercially benefit from the sale of the digitized books via the Google Play store. The Google Play store provides the publishers an established and reputable platform as an additional avenue to market and sell their works for improved sales and profits. The settlement does not give Google the legal rights to monetize copyrighted works that are outside the purview of the settlement. The publishers involved in this settlement are heavyweights of the publishing world, and if they so chose, they could have contested the settlement further, on an equal footing with the behemoth that is Google. Also, while Google has an advantage in that it has a head-start in the digital publishing landscape due to its ongoing digitization efforts since 2005, it cannot be termed as an unfair advantage, as this or similar settlements do not preclude any other Google competitor from negotiating similar or better deals with the publishers.
However, as discussed earlier, the settlement also means a lost opportunity to legally test and answer some important questions around digitization of copyrighted works—whether Google was originally, legally justified under the ‘fair use’ clause in its unauthorized reproduction and digital publishing of 20% of the copyrighted works, especially as Google is a for-profit company and, regardless of their stated intent of creating “a universal digital library with a searchable index for a wealth of new information”, indexing information contained in the books would clearly improve their search results and benefit them commercially. Also, the settlement does not resolve this dispute for other works that are not included under this settlement, or provide legal answers on who owns the copyright for ‘orphaned works’ whose copyright has expired or is unknown. We look to the pending litigation of Google vs. Author’s Guild to provide more definitive, legal answers on these issues.