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The Download Squad Brief: Google Books v Copyright

The six year legal battle over Google Library Project has turned a new page, with a court hearing in New York that may determine the future for the controversial venture to build an online library of more than 18 million books. The hearing, before Federal Judge Danny Chin, will decide the fairness of the 2008 settlement, between Google and the Authors Guild and the Association of American Publishers, that would set the framework on which Google would compensate authors and publishers for works used on the Google Books service.

18 Million Books

Google first announced the Google Library Project in 2004. The purpose of the project was to scan and make available 18 million books in an online database, Google Books, which would comprise the collection of books available in a selection of major US libraries. While the Books project was met with enthusiasm from many consumers and education groups, it was quickly subjected to legal action by the US Authors Guild and the AAP, who contended that the project was in breach of copyright law. Though Google maintains that the project is covered under the copyright doctrine of fair use, this question has never been tested. Rather than taking its chances with the courts, Google has opted to work with rights holders to negotiate a settlement instead.

For the Books project, the scanning of the proposed 18 million books posed very specific legal problems. Some 16% of the books in the project were old enough that the copyright had lapsed and could be reproduced without permission or royalty payments, 9% of the publications were still in print and arrangements could be made with publishers, but as many as 75% of the works are no longer in print and many could be described as 'orphaned' - where it is not apparent who, either, owns or manages the copyright. Google decided that seeking permission for every single orphan work would prove impossible and result in the exclusion of a huge number of works from the project; Google chose to take a legal risk and include the orphaned works in the scanning rather than compromise the scope of the project.

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The Settlement

In 2008, four years after the US Authors Guild filed its legal action against the project, Google reached an out of court settlement with the plaintiffs; the settlement outlined a process that would allow Google to continue the scanning project without gaining prior approval for each copyright protected work.

Under the terms of the settlement, Google will pay rights holders 63% of all revenues received from commercialization of books scanned by the project; pay $34.5 million to establish a registry of rights holders to ensure that payments go to the copyright owners; and pay $45 million to compensate rights holders whose books were scanned prior to 2009.

The settlement was challenged by Google's critics and competitors as being anti-competitive, and some privacy advocates voiced concerns about the scale of the project and Google's ability to be able to track users reading habits. The settlement is constructed as a form of class action, with all owners of copyrights in the Google Books project being covered unless such copyright owners actively opt out of the settlement.

For a large group of authors, the project has evoked a strong negative response. Around 6,500 authors have chosen to opt out of the project, with the prominent author's revolt against it being led by fantasy author Ursula K Le Guin.

Even with such a large number of authors excluding themselves from the project, the scale of the settlement and planned library continues to be enormous; it will encompass most of the copyrighted works published in the US, Canada, the UK, and Australia up until 5 January 2009.

Not such a novel idea

While the issues in the Google Books case have evoked strong feelings on both sides of the debate, the issues involved in the Books project are hardly new when it comes to the collective exploitation of copyrighted works. For decades, the music industry has had to come to grips with the exploitation of vast catalogs of songs and recordings via television, radio, and the Internet.

Every day, radio stations around the world broadcast copyrighted songs, and pay blanket royalties to collection societies that represent the songwriters and artists, such as ASCAP and BMI in the US, and the PRS in the United Kingdom. Because the playlist of most radio stations represents a complex web of rights owned by songwriters, artists, and record labels worldwide, the collection of performance royalties involves radio stations and other rights holders negotiating blanket licenses in advance.

Music collection societies regularly recieve reports from end users that include plays for orphaned or unidentified works. Unlike the proposals in the Books settlement, though, music collection societies are currently not entitled to collect for orphan works and license only tracks in their reportoire. On a practical basis, since music collection societies are not authorized to collect on behalf of orphan rights owners, this means that, even though orphaned works are played every day on radio and television, royalties are rarely collected or paid to rights holders for use of the works.

The issue of orphaned rights is one that copyight regulators have been trying to come to grips with in recent years. In 2009, the UK Government's Digital Britain Report proposed that it was in the public's interest that the government should have a limited right to grant licenses for orphaned works. The British Copyright Council has released a position paper that argues that copyright legislation should be amended; the paper proposes that collection societies should be allowed to authorize the use of orphaned works and collect royalties for the use of said works.

Running Interference

The attempts of opponents to halt or delay the project have often been based on narrow commercial or ideological interests. On one side, Google rivals such as Microsft and Yahoo! have been engaging in delaying tactics to slow down the project. At the fairness hearing, Microsoft played the role of spoiler, sending its top IP lawyer, Tom Rubin, to claim that the settlement would only reward bad behavior from Google by retrospectively authorizing the scanning project.

According to Rubin, "Google... took a short cut by copying anything and everything regardless of copyright status. They're like a trucking company that instructs its drivers to go 90 miles an hour. It's not surprising that competing companies that obey the speed limit can't keep up." [via Main Justice]

Other opponents have opposed the Books project due to privacy concerns, arguing that if Google is able to track what users are reading, it will also be able to track sensitive information. If that is possible, then Google may be able to compromise the privacy rights of users.

Arguments concerning privacy concerns, while well meaning, seem to be somewhat pointless in a world where people already trust their personal emails, documents, photographs, and videos to Microsoft, Google and Yahoo. If privacy laws can deal with those issues, surely they can also deal with the Books project. If existing laws can't deal with current privacy concerns, then the laws need to be examined, not the Books project.

An alternative ending?

Proponents of the Google Books project argue that, in the event that the settlement isn't finalized, it will be a major setback for the advancement of knowledge online. University of Michigan's Paul Courant argues that, if the deal isn't approved, many books will simply fade back into history. As reported on the Main Justice Web site, Courant stated that, should the settlement fail, it will be a lost opportunity. He said that "the alternative to the settlement is not a utopia of universal digital access. Rather, it is the status quo under which most of the works of the 20th century simply cannot be legally read in digital form, and physical and institutional proximity to great collections is the only effective means of access."

Closing the Book on the Settlement

Ultimately, it would appear unlikely that the issues surrounding the Books project will finally be resolved by the Chin hearing, as opponents to the project will be unlikely to cease their legal challenges.The Google Books Settlement is a rare example of the market working constructively to resolve a problematic legal issue. However, the efforts to derail the project demonstrate that the current legal framework is failing to support the development of creative industries online. There is a clear value in the development of a comprehensive, online library of books, and the non-exclusive nature of the Books project should not prevent any other corporation, government agency, or non-profit from launching a similar project.

The six years that have passed since this legal battle began have been an unwelcome hiatus in the development of the Books project, and they have been of benefit to no one other than, possibly, Google's competitors. The publishing industry should be allowed to negotiate collective solutions that are in the best interests of authors, the industry, and the public. The publishing industry should be allowed to follow the example of the music industry in order to allow for growth in the digital age.

Professor Lawrence Lessig, a copyright reform advocate, argues that the current copyright regime is incapable of dealing with the complexity of online exploitation of copyrighted works. Writing in the New Republic, Lessig argues that copyright law must be reformed in order to allow the complex interrelated rights that make up books, films, and sound to be exploited in a practical manner, and on an ongoing basis, online. "The law should enable a simple way for the compiled work to clear perpetual rights to that work alone, so that it can be made available, even commercially, forever," writes Lessig.

Lessig's argument is compelling when viewed in the light of the Books settlement, which excludes photographs or images which are not owned by the copyright owner of the book. This means that many of the books may be reproduced without crucial photos or illustrations. As noted on the Books Settlement Web site, "if a history Book contains a series of maps where the copyrights to those maps are owned only by persons other than a copyright owner of that history Book, those maps are not covered by the Amended Settlement."

Taking it on the Chin

Although the ultimate future of the project may not entirely depend on the decision of Federal Court Judge Denny Chin, it is likely that the result of the fairness hearing will have a direct impact on how soon consumers might start to reap the benefits of the Books project or others like it. The decision from the Chin hearing will hopefully put a framework in place to allow the continued development of copyright law in the digital world.

Ultimately though, the issues surrounding the exploitation of orphaned works with projects such as Google Books demand that copyright law is reexamined; the law should ensure that orphaned works can be exploited in the best interests of consumers, rights holders, and the Internet industry. Commercial solutions, such as those proposed in the Books Settlement, go a long way towards creating a new framework. However, without legislative reform, projects like Google Books will continue to face legal hurdles in order to get off the ground. It is ultimately in the best interest of the public, the education sector, and the technology and media industries to have a more flexible legal framework with regards to copyright law. While the reform of copyright law is likely to be cruicial for ongoing development across a range of media, it may be that the scale and ambition of the Google Books project is the catylst that is necessary to finally achieve that aim.

The Download Squad Brief is a regular column looking at Web 2.0 legal issues by Gordon Finlayson, a corporate media lawyer based in Dubai. Prior to life as a lawyer, Gordon worked for companies such as CNET, ZDNET and Excite@Home.

Tags: copyright, features, google, google books, GoogleBooks, lawsuit

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