Is Google Book Settlement In Jeopardy?

For those of you who have no idea what I’m talking about, the Google Book Settlement refers to the proposed settlement of a dispute between book owners and Google with regards to Google Book Search. This feature, which was introduced by Google at the Frankfurt Book Fair back in October 2004, scans books so that they are searchable through Google’s search engine. This project includes all kinds of books, whether protected by copyright or not, and whether in-print or not. The books are scanned in their entirety, but someone searching for content is able to see a limited portion of the book. When a user clicks on the search result, this opens up a Google interface with featured online advertisements.

Because Google never sought permission from copyright owners to scan these books, this resulted in some fairly severe legal entanglements for the digital giant. In September of 2005, the Authors Guild filed a class action against Google arguing that its Library Project (the Google Books Library Project is the title for Google’s effort to scan and make searchable the collections of several major research libraries), involves massive copyright infringement by creating digital copies of copyrighted works for commercial use. Google’s arguments were mainly that its digital copies were within the fair use doctrine of the Copyright Act (because only snippets are available for viewing), and in each instance where the copyright owner would notify Google that it did not want its book scanned, Google would refrain from scanning such books.

In October of 2008, the parties entered into a proposed settlement agreement for $125 million. $34.4 million of that amount is set up to go towards the Book Rights Registry, a copyright collective that would pay copyright owners a portion of profits made by Google Books (not unlike ASCAP or BMI). Authors and publishers can opt-in or opt-out of the settlement class by January 5, 2010. If you do not opt out, then you are in the settlement, but you must submit a claim for books digitized without your permission prior to May 2009 without your permission if you want to be compensated for such use – this claim must be submitted by January 5, 2010. Payment generally includes a one time cash payment of $60, and 63% of all advertising and e-commerce revenues associated with their works. More information can be found at www.googlebooksettlement.com.

This Settlement, however, has received an exceptional amount of objections from a variety of sources, including countries, states, nonprofit organizations, and prominent authors and law professors. Indeed, objections to the settlement are too numerous to discuss fully here, but include concerns regarding orphan works, potential antitrust violation, and privacy concerns. This has resulted in the parties renegotiating many aspects of the agreement. Just yesterday, Judge Chin of the Southern District of New York, granted a motion to delay an October 7 hearing on the settlement given the fact that the parties are renegotiating the agreement. In light of all this, it remains to be seen to what extent the settlement can survive in any form…

Written By: Olivera Medenica
Wahab & Medenica LLC
www.wrlawfirm.com
New York, NY