Court Rejects Google Book Scanning Settlement With The Authors Guild

from the back-to-square-one dept

Tue, Mar 22nd 2011 2:56pm — Mike Masnick

Well, well, well. For many years there's been quite the back and forth about Google's book scanning project. As you may recall, years back, Google started scanning various books to create what was effectively a giant online card catalog, making it much easier to research and find useful books. Contrary to what some have claimed, it did not make it easy to read entire books online. In fact, publishers began realizing that Google's book search helped sales by helping people find their books, and directing them to where those books could be bought. But, still, the rather backwards looking Authors Guild couldn't resist and sued. It seemed like Google had an incredibly strong fair use argument, especially if you take into account the original intent and purpose of copyright law, being a statute to increase the spread of knowledge.

Unfortunately, after a few years of fighting back and forth, Google caved, with a "settlement" that was hardly a "settlement" at all, but rather a way for Google to effectively lock up the online book scanning business all to itself. I thought this was disappointing for any number of reasons, and many people agreed, leading Google and the Authors Guild to scrap the original settlement for a new one that was only slightly more reasonable. It still seemed more like a business deal, rather than a settlement, and still ignored the key fair use questions raised by the lawsuit.

Today, however, a district court judge has rejected the settlement. The full ruling by Judge Danny Chin is embedded below, but the short version is that the settlement was rejected because, as with the original settlement, this was more of a business deal in which Google benefits at the expense of competitors. That part, I'm fine with. Where I'm more troubled is that Chin claims that this settlement "rewards" Google "for engaging in wholesale copying of copyrighted works without permission."

The ruling does acknowledge the many, many benefits of Google's book scanning project:

The benefits of Google's book project are many. Books will become more accessible. Libraries, schools, researchers, and disadvantaged populations will gain access to far more books. Digitization will facilitate the conversion of books to Braille and audio formats, increasing access for individuals with disabilities. Authors and publishers will benefit as well, as new audiences will be generated and new sources of income created. Older books -- particularly out-of-print books, many of which are falling apart buried in library stacks -- will be preserved and given new life.

I agree with the decision to dump the settlement. It seemed clear that the settlement goes way beyond the issues in the case to create a separate right that perhaps the Authors Guild had no right to negotiate over. And that seems to be the key concern by the judge. The judge suggests, if anything, that Congress is the proper party to step in here and define the rights over these kinds of books.

The judge does acknowledge the fair use argument, but really only to point out that it was the crux of the lawsuit, but is more or less ignored by the settlement. He does seem to suggest that the fair use defense wouldn't fly here, but doesn't go into any thorough analysis. I'm a bit disappointed by that, because I still think that the fair use claim here was strong, and claiming that this was clear infringement is misleading and will be a problem down the road. In fact, the analysis on the copyright issues reaches somewhat troubling depths, suggesting that it found claims from authors of moral rights to their works -- which are not recognized in the US -- persuasive, in arguing that the scanning was infringement.

In the end, rejecting the settlement was probably the right move, but I'm troubled by the suggestion that the scanning itself was clearly infringement, and the skipping over of fair use as an important issue here, compounded by the acceptance of moral claims from authors that they "don't want" someone digitizing "their" works.

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Filed Under: book scanning, copyright, fair use, settlement
Companies: authors guild, google

19 Comments

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Dave, 22 Mar 2011 @ 3:35pm

Imaginary Property
We are past the point where we need to rely upon imaginary property and government enforced monopoly rights to encourage innovation and create advancements in art, science and innovation. Copyright supporters will say that there is incentive needed to create and they have a need to enforce their right to control the fruits of their labors. They are holding us back from an explosion of creativity of the likes the world has never seen. I reject your so called rights and call upon all people to do the same. You are holding us back. You are killing sick people. You are nothing but a drain on our economy. Please leave. I will gladly pay you to make me a sandwich.
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Anonymous Coward, 22 Mar 2011 @ 3:59pm

^^^^ What he said. Aside from Trademarks, IP laws can all bugger off.
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- Steven (profile), 22 Mar 2011 @ 4:07pm
  
  Re:
  Assuming, of course, that trademarks are used for the sole purpose of reducing the chance of consumer confusion. :)
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  - RD, 22 Mar 2011 @ 4:48pm
    
    Re: Re:
    "Assuming, of course, that trademarks are used for the sole purpose of reducing the chance of consumer confusion."
    
    Which they aren't...
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    - Chargone (profile), 23 Mar 2011 @ 1:59am
      
      Re: Re: Re:
      so, all IP laws except trademarks can bugger off, and trademarks need to be reassessed and reapplied and generally abused less, or something like that, yah?
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Atkray (profile), 22 Mar 2011 @ 6:54pm

Wouldn't it be nice
If Google sees that it isn't going to get a settlement approved and decides to pursue the fair use claim. Of course then they need to find a judge that hasn't been....

NVM I'll go back to my homework now.
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Truth, 22 Mar 2011 @ 7:29pm

If you own the property...
Article: In his decision, Chin wrote, "While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far." But he didn't stop there.

"Although I am persuaded that the parties are seeking in good faith to use this class action to create an effective and beneficial marketplace for digital books, I am troubled in several respects," Chin wrote. He brought up several key issues that seemed to point a way toward potential resolution of the agreement, including moving the issue of orphan works and international copyright issues to Congress, privacy concerns and inverting the structure of the ASA so authors interested in participating could opt in, rather than being included by default.

For out-of-print books, this could be a good plan for exposure to the world. However, I�m with the judge in his caution. Copyright is held by the author unless granted to another. Are we to believe that the serious issues cited by the judge were fully explored by Google and those claiming to represent authors all over the globe? Authors should have the right to opt their individual works in. Consumers may not care about intellectual property - especially when a work is available on the web. But the world will lose new artistic creations when authors, artists, illustrators, song writers, music artists, and other creators lose the solid protections of copyright. Go research the music industry on this one. You�ll likely get an earful and it won�t be the tune you wanted.
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Truth, 22 Mar 2011 @ 7:37pm

To Imaginary
The judge rests his case on your argument. It was obviously written for the perspective of someone who has never spend years creating something of value that many people want, but would lake to have for little or nothing. Like a book, a song, a painting. Fact is there copyright law has teeth and has been the only shield that leveled the field for many creators over the years. In the past it was the industry that often "managed" away a hefty portion of the creator's reward. Today it's compounded by consumers who just "borrow" the created works from the web.
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- xebikr (profile), 22 Mar 2011 @ 8:39pm
  
  Much Too Imaginary
  It was obviously written for the perspective of someone who has never spend years creating something of value that many people want
  
  How about written from the perspective of someone who is sick and tired of creativity being all about lawsuits. There is more creativity in the way copyright law is asserted than there is in 98% of the movies made by Hollywood last year.
  
  Or it could be written from the perspective of someone who is sick and tired of the whining from the creators who only want total control of their "property". I absolutely support you in your quest for total control. Next time you create something, keep it to yourself.
  
  Honestly. Let go of your government charity and stop acting like the universe has entitled you charge money for rehashing some story that was written and rewritten centuries ago.
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Nelson Cruz (profile), 22 Mar 2011 @ 8:24pm

Moral rights don't even apply!
Moral rights are attribution and integrity of the work. They don't even apply to this situation! Check the language of the Berne Convention. From wikipedia:

"Article 6bis of the Berne Convention protects attribution and integrity, stating:
Independent of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author's honor or reputation."

Are they claiming that digitizing books somehow distorts or mutilates their works??? That would a be a stretch to say the least... And its troubling a judge would sign off on new (economic?) rights based on highly questionable "moral" claims!
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- The eejit (profile), 23 Mar 2011 @ 2:16am
  
  Re: Moral rights don't even apply!
  IS it wrong that I now have an image of a dog-eared copy fo The Grapes of Wrath, saying that Google mutilated its author's bookage?
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- Curtis (profile), 9 Dec 2013 @ 9:55pm
  
  Re: Moral rights don't even apply!
  Duh, what about presentation of scanned indecent material to anonymous children.
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Jesse (profile), 23 Mar 2011 @ 12:09am

Why is it fair use for TurnItIn to archive copies of other peoples work, but Google can't? It's because students own the copyrights with TurnItIn, and legacy book publishers own the copyrights in the case of Google.
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- Carolyn Jewel, 23 Mar 2011 @ 12:19pm
  
  Re: Copyright Ownership
  "the legacy book publishers own the copyrights in the case of Google"
  
  I'm not sure why that matters, but be that as it may, that statement is only correct in the limited cases where the publisher bought the copyright from the author. With respect to fiction (including my own) the author retains the copyright.
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  - Jesse (profile), 23 Mar 2011 @ 6:40pm
    
    Re: Re: Copyright Ownership
    Allow me to clarify.
    
    Copyright is a legacy patriarchal system, with gatekeepers and middlemen. Tradionational book publishing is part of this established system, whereas students owning copyrights on papers they wrote for classes, and thus controlling what others do with them, is simply an unintended/undesired consequence of this system. Giving students this power does not jive with the tradionational model of content control, and that probably has a lot more to do with the TurnItIn ruling than any meaningful legal interpretation.
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Nicholas Thompson, 23 Mar 2011 @ 4:23am

Fair Use and the ruling
Very smart post, as usual. My one objection is that I don't think the judge was as dismissive of Google's original Fair Use claims as you say. His objections don't cover the initial argument---can Google publish snippets of books?---they cover the terms of the final settlement---can Google publish the entirety of books? In particular, on pages 25 and 26 (also footnote 11) the judge seems to be saying that even Google didn't argue that it had the right, under fair use doctrine, to publish entire copyrighted books.
In other words, I don't think this ruling will have much effect the next time that there's a debate over whether companies have the right to scan books and publish snippets.
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Capitalist Lion Tamer (profile), 23 Mar 2011 @ 4:57am

Good lord!
They're shoving my "children" through the scanner!
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Willton, 23 Mar 2011 @ 4:42pm

An Opinion on Fair Use is Inappropriate Here
The judge does acknowledge the fair use argument, but really only to point out that it was the crux of the lawsuit, but is more or less ignored by the settlement. He does seem to suggest that the fair use defense wouldn't fly here, but doesn't go into any thorough analysis. I'm a bit disappointed by that, because I still think that the fair use claim here was strong, and claiming that this was clear infringement is misleading and will be a problem down the road.

This is not an opinion on the merits of the case; this is an opinion regarding the propriety of a settlement agreement. Neither party put the issue of fair use before the judge, and thus neither party briefed the issue. The only thing put before a judge was whether the proposed settlement was proper. Thus, it would be entirely inappropriate for the judge to render an opinion regarding the merits of a fair use defense without giving each party an opportunity to argue its case.
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Simon Chamberlain (profile), 24 Mar 2011 @ 11:09am

Can I be the first librarian pedant to mention that most libraries haven't used card catalogs for around 20 years? We've had online catalogs for quite a while ;-)

Not quite so pedantically, what Google Books offered is kind of different, because it's full-text searching vs the metadata searching that you'd get in a catalog. Both have different uses, both valuable in their place (and to be clear, I think that Google Books is amazing from a technical/usage point of view, notwithstanding problems with the settlement...)
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