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Thursday, March 24, 2011

Google, the Author's Guild, Lawsuits, Publishing Intrigue and Digitizing Copyrighted Books!


Intrigue is popping up all over the place RE the several-year-old lawsuit against Google for trying to digitize millions of (mostly orphaned...[that is out of print]) books.

I previously posted on this publishing intrigue on 2/6/2010: Feds Troubled by Google's Digital Book Deal ...Please feel free to read that post for a little more background.

Back in 2004, authors and publishers first filed suit against Google for copyright infringement...A fairly straightforward lawsuit for scanning millions of books without permission, and then making snippets available online.

Then Google and the Author's Guild (representing these authors & publishers) reached an ASA (Amended Settlement Agreement) that placated all parties.

This, however, angered Google's competitors (like Amazon and Microsoft) who didn't cotton to the prospect of Google effectively becoming the sole publisher of orphan works, and both filed briefs to that effect.

THEN, just two days ago, New York District Judge Denny Chin ruled against the Amended Settlement Agreement (ASA) declaring it would give Google too much power over all authors in the future to digitize complete orphaned books without first obtaining permission from content owners.

What is really a little strange about this case is the fact that the Author's Guild wanted to accept the ASA on behalf of the authors and publishers (original content owners) because it would pay the content owners around 65% of proceeds and make many hard-to-get books readily available to the public (a noble purpose) AND get the authors' names online and in front of millions.

However, the acceptance of the ASA has a problem: the settlement reads like a forward-looking business contract between Google and ALL authors...This would give Google too much leeway for copying/digitizing copyrighted whole books as already mentioned above and is explained in more detail by Sam Gustin of Wired.Com :

Google Books Deal Not Dead, Only Resting, Authors’ Lawyer Says

The current settlement is too broad, and over-reaches, according to Judge Chin, because it draws all authors, including unknown authors, into a class action settlement that exceeds the scope of the original 2004 lawsuit. That was a fairly straightforward copyright-infringement lawsuit by the authors and publishers against Google for scanning millions of books without permission, and then making snippets available online.

In response to the original lawsuit, Google made a fair-use argument, roughly analogous to the one by which it has the discretion to index the entire web and sell ads against search results. It’s important to remember that although Google has scanned millions of books into its database, it only displays a snippet of each copyright book for which it has no license. The purpose of the settlement was to allow Google to open up its database, creating a massive online library of 10 million books, accessible to all.

The problem is that the settlement reads like a forward-looking business contract between Google and all authors.

As New York University law professor James Grimmelmann observed, “This move is what sinks the settlement.”

“Chin has set up a dichotomy,” Grimmelmann wrote in a legal analysis of the opinion. “Google’s past conduct in scanning and searching was the subject of the lawsuit, but it is Google’s future conduct in selling whole books that would [be] authorized by the settlement.”

Read and learn more


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