Google And Book Publishers Settle

Legal and Technical Implications

Andrés Guadamuz González

Content industries face monumental challenges in the digital domain. Traditional methods of distribution have become obsolete, replaced by digital delivery of copyright content - the route of an apparent conflict between content owners and the new intermediaries: search engines, streaming services, content aggregators and value- added providers. The copyright industry has had to seriously reconsider the role of these emergent services and to explore licensing models that do not easily fit in existing revenue models. The new generation of consumers has also grown suspicious of traditional distribution channels, and expects - be it warranted or not - to find almost any sort of content online at a competitive price.

This conflict has been more evident in the case of GoogleTM. Because of its size, global reach and deep pockets, Google has become the lightning rod for criticism by content owners, and the subject of litigation.

Google Print goes to court

In 2004 Google announced a service called Google Print (later renamed Google Book Search). Google entered into an agreement with several libraries in the U.S. and the U.K. such that it would digitize out-of-print books and make them available to anyone searching for that title. The books were to be offered either in their entirety, or in "preview" mode, meaning that only some pages would be accessible. Google's goal was to digitize 15 million books within a decade, a goal that seemed well underway by October 2008 when there were 7 million volumes in its database. ¹

Needless to say, some authors responded negatively to Google's plans and, in 2005, two separate lawsuits were brought against the search engine giant by the Association of American Publishers and the Authors Guild. Both complaints were similar in scope, and alleged that Google was engaging in copyright infringement by digitally reproducing the plaintiff's works for commercial gain, and then publicly distributing and displaying copies of those works. Google argued their actions fell under the fair use doctrine. Given the importance of the legal issues at stake, the litigation was met with considerable interest from scholars, practitioners, publishers and anyone interested in digital copyright matters. However, formal legal resolution was cut short when in October 2008 the parties announced they had reached an agreement, and the dispute was settled out of court.

The out-of-court agreement

The agreement is surprisingly detailed and far- reaching - the definitions section alone spans 18 pages. ² Under the terms of the agreement, Google will pay US$125 million to the claimants, which will be distributed according to several schemes created by the settlement. Google must create a portal website where authors can optout of the settlement agreement, the deadline for opting out being September 2009.

Authors can also apply for a cash payment scheme that will compensate those whose works were digitized before the opt-out deadline; the deadline for making a claim is January 2010. Google has deposited US$45 million in a Settlement Fund to cover payments under the scheme.

Google will help to create and administer an Institutional...