Is the Google books saga nearing its end?! The DoJ, the forthcoming fairness hearing and the chances of settlement…

The much awaited Google Books settlement may be more difficult to achieve due to the recent (February 4, 2010) DoJ filing which reaffirms legal concerns.

It’s been six years now since the GBS (Google Book Search) project was launched in 2004. The fairness hearing before judge Chin scheduled for Feb 18th could yield further surprises, following the most recent DoJ filing which is still critical of the project.

The original class action lawsuit was submitted by the Authors Guild in 2005 on the grounds of copyright infringement by Google, who was accused of having created and made available digital copies of copyrighted works without seeking rights holders’ permission. The outcome of the litigation is eagerly awaited by those (mostly library community and publishers) who are interested in pursuing mass digitization projects or who envisage Google as a viable commercial partner. The settlement is expected to clarify legal status of digitized (or to be digitized collections) and the potential application of the fair use doctrine; and to shed light on the controversial issue of the “orphan works” (a category of works whose authors cannot be located after a diligent search).

In October 2008, Google and the Author’s Guild entered a complex agreement which, among other things, created a scheme (Books Rights Registry) enabling Google to compensate the rights holders for displaying parts of their books covered by copyright. Under the same settlement, there was established a highly criticized opt-out mechanism (with deadline) ,to be used by the rightsholders who didn’t wish to be part to the settlement.

In September 2009, the DoJ first stepped in to comment on the agreement. Whilst labeling it as “one of the most far-reaching class actions statements of which the United States is aware ”, it criticized severely this “ambitious undertaking” and urged the court to reject the deal. According to the DoJ, the settlement violated the Federal rule of Civil procedure 23, the copyright law and the antitrust law. The main accusations to Google was its effort to “implement a forward-looking business arrangement”, by establishing Google’s dominant position in the digitization market, mainly thorough exploitation of the “orphan works”. Also, concerns were raised with regards to the class action mechanism (as disciplined by the Rule 23): the DoJ affirmed that the named class representatives did not represent adequately the absent class members (i.e. unknown rightholders of the orphan works). The DoJ suggested the following modifications to the agreement be made to address the existing concerns:

imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and providing a mechanism by which Google’s competitors can gain comparable access” (http://www.justice.gov/opa/pr/2010/February/10-opa-128.html).

To address the DoJ’s criticisms listed above, the parties came up with an amended settlement agreement, which was preliminarily approved by the Court on November 19, 2009. The amended settlement appears to have made significant progress so far as the “orphan works” and the anti-competitive behavior issues are concerned. It is proposed that a “fiduciary” be created to represent effectively the rightsholders who cannot be located, and that part of the revenue gained from the orphans work be split between further activities to locate unknown rightsholders and grants to the “literacy-based charities”. Also, the provisions that would give Google the status of the “most favored nation” are being eliminated.

So far so good!  But, yet again, the DoJ steps in at the last minute ahead of the fairness hearing and points its finger at what is considered to be most problematic issue.  Though recognizing the overall progress made by the parties in making the settlement healthier, the DoJ reaffirms that the settlement:

“suffers from the same core problem as the original agreement: it is an attempt to use the class-action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the court in this litigation.”

The orphan works is, again, the most targeted issue and further limitations are suggested in order to address it, namely:  1) shortening the period of exploitation of the orphan works, and 2) increasing the waiting period between when an orphan work is entered in the database and when it is made publicly available. More generally, the legal scope of the agreement is restricted to the books printed in the US.  Please check this link for the extended version of the filing http://graphics8.nytimes.com/packages/pdf/technology/20100205_googlebooks.pdf.

A final question: why do we need GSB? Or rather who will benefit from it? In its earlier filing (September 2009, mentioned above), the DoJ recognized the settlement would “breath new life” into currently off-public  books, by widening up new research opportunities”,  by making accessible millions of books through institutional subscription and by clarifying (thanks to the creation of the Books Rights Register) the copyright status of out-of-print books.  Also, it is expected that printed-disabled categories would greatly benefit from the settlement, as indicated by the strong support demonstrated by US National Federal of the Blind.

To sum up, it seems that should the amended settlement come to fruition, it would bring huge social value in terms of widening access to knowledge. So, good luck for February 18th!

Post written by Irina Curca of CAS-IP

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One response to “Is the Google books saga nearing its end?! The DoJ, the forthcoming fairness hearing and the chances of settlement…

  1. Thanks for this informative and fascinating overview.

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