Fate Of Google Book Search Still To Come, Expert SaysPublished on 8 February 2013 @ 1:02 am
By William New, Intellectual Property Watch
A few years ago, internet giant Google had the idea to digitise tens of millions of the world’s books and ran into legal trouble with the publishers and authors of some of them. The cases have moved through many stages, but the ultimate fate of the massive amounts of knowledge it could have made available to the public is still to come, says a Washington, DC lawyer who has followed the case closely for years.
A look at the status of the project was given by Jonathan Band of policybandwidth.com in Washington, DC. He spoke at the Yale Law School Information Society Project on 6 February. (Band graduated from Yale Law School before working for a large law firm in Washington for many years, and now has his own firm.)
Originally, the Google Book Search started in about 2004 would allow books to be searched online, and would display three short snippets of the text. It would scan some 25 -30 million books borrowed from major U.S. research libraries, some 80 percent of which were still under copyright.
Google said displaying a small portion is fair use, but authors and publishers did not see the advantage and sued for infringement in autumn of 2005. One involved five publishers, the other the Authors’ Guild association, in a class action suit.
In 2008, a complicated 200-page (plus appendices and attachments) settlement was announced between Google, publishers and authors. The settlement would have let Google sell whole books, offered a subscription service for libraries or others to access the full database, and would allow up to 20 percent of the book to be viewed for free.
But some writers, especially foreign ones, were worried about this arrangement, as were some lawyers who saw problems with using a class action settlement to allow Google to offer commercial services not at issue in the original litigation. The US Copyright Office said it might violate international treaty obligations, and the Justice Department raised antitrust concerns.
So the settlement was revised, and a fairness hearing was held in 2010. Then in 2011, Judge Chin rejected the settlement, essentially on the basis that many class members opposed it, Band said.
Meanwhile, Google gave its partner libraries digital copies of the books they had lent it. Under the settlement, the libraries were able to put their copies together to form HathiTrust, managed by the University of Michigan library. It would create a separate database of all the books, but with strong limits on what could be done with them.
After Judge Chin rejected the settlement in 2011, HathiTrust had to decide what to do with the database. Google, for its part, continued to do what it had always been doing (scanning and displaying three snippets).
With the rejection of the settlement, the two original lawsuits against Google (by the publishers and the Authors Guild) resumed. Additionally, the Authors Guild and several associations of foreign writers sued HathiTrust.
The five publishers settled their litigation with Google in October 2012. It is unclear whether any other publishers might emerge to sue Google, but Band thought it unlikely. Among other reasons: e-books have become widely available and popular, and it has become apparent that the Google scan and snippet does not hurt them, and may even help.
In the Authors Guild suit against Google, Judge Chin in May 2012 certified a class of authors whose copyrights Google allegedly infringed. Band observed that Chin’s certification of the class seems contradictory to his rejection of the settlement on the grounds that the interests of authors were too diverse. Google appealed the author class certification to the Second Circuit, and a ruling is pending.
In the Authors Guild suit against HathiTrust, Judge Baer in October 2012 found that HathiTrust was a fair use. The Authors Guild has indicated that it will appeal that decision to the Second Circuit.
Band said the Google Book Search may not be indicative of the overall state of knowledge access, but rather is a somewhat unique situation focusing on search. But he said that the question of making available the full text of the scanned material is still not solved. It is not available unless they are HathiTrust members or print-disabled readers. For non-members, HathiTrust displays even less than Google – not even the snippets.
Meanwhile, libraries still have their archived material, and there are a variety of digitisation projects going on worldwide.
Another case that is being very closely watched involves Georgia State University’s e-reserves. Judge Evans found they are fair use, and the publishers have appealed.
Overall, copyright is still a “really big problem” for mass digitisation and educational uses, Band said. And even the Justice Department may weigh in on the side of rights holders in the Georgia State case.
He offered little hope for the US Congress to solve the problem. “As dysfunctional as Congress is about budget matters, it is even more dysfunctional about copyright,” he said.
So for now, the process is going to have to be litigation.
He did question the approach of the publishers, who are in effect suing their content creators and their customers. In the Georgia State case, the judge found that only five out of 99 excerpts were infringing, and so awarded the university attorney’s fees.
Finally, Band called attention to the apparent inconsistency that academics publish their works with strongly proprietary scholarly publishers, rather than publishing their works in an open access format. He proposed that academic institutions should encourage academics to publish open access.
William New may be reached at firstname.lastname@example.org.