Authors Guild, Inc. v. Google, Inc.
Authors Guild v. Google 804 F.3d 202 was a copyright case heard in federal court for the Southern District of New York, and then the Second Circuit Court of Appeals between 2005 and 2015. It concerned fair use in copyright law and the transformation of printed copyrighted books into an online searchable database through scanning and digitization. It centered on the legality of the Google Book Search Library Partner project that had been launched in 2003.
Though there was general agreement that Google's attempt to digitize books through scanning and computer-aided recognition for searching online was seen as a transformative step for libraries, many authors and publishers had expressed concern that Google had not sought their permission to make scans of the books still under copyright and offer them to users. Two separate lawsuits, including one from three authors represented by the Authors Guild and another by Association of American Publishers, were filed in 2005 charging Google with copyright infringement. Google worked with the litigants in both suits to develop a settlement agreement that would have allowed it to continue the program through paying out for works it had previously scanned, creating a revenue program for future books that were part of the search engine, and allowing authors and publishers to opt out. The settlement received much criticism as it also applied to all books worldwide, including works that may have been out of print but still under copyright, and may have violated antitrust aspects given Google's dominant position within the Internet industry. A reworked proposal to address some of these concerns was met with similar criticism, and ultimately the settlement was rejected by 2011, allowing the two lawsuits to be joined for a combined trial.
In late 2013, after the class action status was challenged, the District Court granted summary judgment in favor of Google, dismissing the lawsuit and affirming the Google Books project met all legal requirements for fair use. The Second Circuit Court of Appeal upheld the District Court's summary judgment in October 2015, ruling Google's "project provides a public service without violating intellectual property law." The U.S. Supreme Court subsequently denied a petition to hear the case.
Background
launched its Google Book Search in 2002, initially named as its Google Print service. At its start, books were manually scanned page by page, using optical character recognition to create a digital version of their text which then was incorporated into Google's search capabilities. As the project grew, Google expanded its capabilities to increase the rate at which books could be scanned and entered into its database, increasing the rate up to 6,000 pages per hour per scanning station, and build out a number of scanning facilities to enable rapid scanning of books brought to them from local sources. End users of the search engine could then search through the books to find words and phrases as they would with web sites, along with other advanced search features. Because of the possibility of OCR errors, users are shown the scanned pages rather than the digital text to verify the text for themselves. The project was considered a major transformative work for information sciences at the time.Initially, Google only worked with books in the public domain. In December 2004, Google announced it had established its Library Partnership with the libraries at Stanford, Harvard, Oxford, the University of Michigan and the New York Public Library to obtain works both in the public domain as well as limited works in copyright from Stanford, Harvard, and the University of Michigan. For works still under copyright, Google scanned and entered the whole work into their searchable database, but only provided "snippet views" of the scanned pages in search results to users. This had mirrored a similar approach Amazon had taken for book previews on its catalog pages. A separate Partner Program also launched in 2004 allowed commercial publishers to submit books into the Google Books project, which would be searchable with snippet results and which users could purchase as eBooks through Google, if the partner desired.
Authors and publishers began to argue that Google's Library Partner project, despite the limitations on what results they provided to users, violated copyrights as they were not asked ahead of time by Google to place scans of their books online. By August 2005, Google stated they would stop scanning in books until November 2005 as to give authors and publisher the opportunity to opt their books out of the program.
The publishing industry and writers' groups criticized the project's inclusion of snippets of copyrighted works as infringement. Despite Google taking measures to provide full text of only works in public domain, and providing only a searchable summary online for books still under copyright protection, publishers maintain that Google has no right to copy full text of books with copyrights and save them, in large amounts, into its own database.
Inception of the lawsuit
In September 2005, three authors as well as the Authors Guild of America filed a class action lawsuit against Google and Stanford, Harvard, and the University of Michigan libraries over the Google Print project, citing "massive copyright infringement". The complaint asserted that Google had not sought approval to make scans of the copyrighted books, and asked for an injunction to stop Google from scanning any copyrighted works during the lawsuit. Google countered that its project represented a fair use and is the digital age equivalent of a card catalog with every word in the publication indexed. A month later, the Association of American Publishers, representing five publishers – McGraw-Hill, Pearson Education, Penguin Group, Simon & Schuster and John Wiley & Sons – filed a similar suit against Google and the libraries on a similar complaint. Both cases were heard in the United States District Court for the Southern District of New York initially under Judge John E. Sprizzo.Settlement attempts
Initial settlement
Google worked with all parties in both cases at the same time, and in October 2008, had reached an initial settlement agreement in both cases, pending court approval. Also known as the "Google Book Search Settlement Agreement", the terms of this settlement included:- A total of payment from Google to the affected companies and authors: to the rightsholders whose copyrights had allegedly been infringed; for the publishers' legal fees; to the authors' lawyers; and to create a Book Rights Registry, a form of copyright collective that would collect revenues from Google and dispense them to the rightsholders.
- The settlement gave all authors and publishers a year and half, until June 2010, to submit opt-out requests to Google to either prevent Google from scanning their books in the future or to remove any books already scanned.
- For all other books, it allowed Google to continue to scan and incorporate the contents into its search results, though paid to authors and publishers for all copyrighted works for scans it had made before May 2009.
- Google was able to engage in one of several revenue models to offer this content to users. All revenue was shared 37% with Google and 63% split between the authors and publishers under this. Authors or publishers had options to limit how their work was used under this model as well.
- * For free user, Google was able to show up to 20% of a copyrighted book via the snippet mode. Google could show ads on these pages and split the ad revenue with authors and publishers.
- * A user could purchase access to a book, treated as an eBook, for a one-time cost.
- * Institutions could acquire full access to all books for a subscription-based fee.
Settlement criticisms
In the US, several organizations who took no part of the settlement, such as the American Society of Journalists and Authors, criticized the settlement fundamentally. Moreover, the New York book settlement was not restricted to U.S. authors, but relevant to authors of the whole world. This led to objections even on the level of some European governments and critical voices in many European newspapers. The estate of John Steinbeck argued for and was granted an additional four-month extension for the class to file objections, putting the deadline into October 2009 and with Judge Chin expected to evaluate the settlement in November.Primary criticism of the settlement was related to copyright. Siva Vaidhyanathan, associate professor of Media Studies and Law at the University of Virginia, has argued that the project poses a danger for the doctrine of fair use as the fair use claims are arguably so excessive that it may cause a judicial limitation of that right. American author Ursula K. Le Guin announced on her website her resignation from the Authors' Guild over the settlement, claiming the leadership of the Guild had "sold us down the river" and that the settlement threatened "the whole concept of copyright." She launched a petition against the settlement, which was signed by almost 300 authors.
Censorship was also raised as a major issue, as respondents argued Google was creating a content management system that could remove material as easily as they could add it, and would have the power to remove books the same way that it is able to remove videos from YouTube, with no controlling mechanisms outside Google itself. Organizations such as the International Federation of Library Associations and Institutions and the Electronic Frontier Foundation fear that pressure from governments and special interest groups could lead to the censorship of certain books and that there is public interest in protecting the scans from being buried behind Google's ranking system.
Privacy advocates from EFF and American Civil Liberties Union also raised concerns that Google would track users of its book services. Privacy advocates want Google to provide privacy assurances comparable to those enjoyed by visitors to traditional libraries. Others have denounced the settlement for neglecting to protect reader privacy.
Antitrust issues were also raised as Google was a dominant entity in Internet services in the market. Since the settlement agreement covers the previously digitized books and provides a revenue model for future digitization, it " Google control over the digitizing of virtually all books covered by copyright in the United States." As the license agreement is non-exclusive, it does not necessarily tie publishers to Google's service. In a journal article, MIT Professor Jerry A. Hausman and Criterion Economics Chairman J. Gregory Sidak conclude that the service will be unable to exercise market power. Hausman and Sidak believe that Google Book Search should, on net, yield a significant gain in consumer surplus. Among the objections to the settlement was a "Statement of Interest" from the United States Department of Justice submitting in September 2009. The DOJ's statement, while acknowledging the settlement was in the right direction, identified possible antitrust concerns with the current settlement terms, stating "The current settlement proposal would stifle innovation and competition in favor of a monopoly over the access, distribution and pricing of the largest collection of digital books in the world, and would reinforce an already dominant position in search and search advertising."
In October 2009, Google countered ongoing criticism by stating that its scanning of books and putting them online would protect the world's cultural heritage; Google co-founder Sergey Brin stated, "The famous Library of Alexandria burned three times, in 48 BC, AD 273 and AD 640, as did the Library of Congress, where a fire in 1851 destroyed two-thirds of the collection. I hope such destruction never happens again, but history would suggest otherwise." This characterization was criticized by Pam Samuelson, UC Berkeley Professor of Law saying