Google Settles With Publishers (But Not Authors Guild) In Scanning Case

Google has settled the seven year old book scanning case with plaintiffs Association of American Publishers (AAP).  Unlike the comprehensive settlement that Judge Denny Chin rejected in March of 2011, this resolution does not require his approval.  The specific terms of the agreement are undisclosed.  I would think there are contingencies built in depending on the outcome of the rest of the litigation.  The joint press release issued by Google and the AAP has this:

The settlement acknowledges the rights and interests of copyright-holders.  U.S. publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project.  Those deciding not to remove their works will have the option to receive a digital copy for their use.

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Google Books allows users to browse up to 20% of books and then purchase digital versions through Google Play.  Under the agreement, books scanned by Google in the Library Project can now be included by publishers.

Further terms of the agreement are confidential.

This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.

The Guild issued its own terse statement (reprinting the joint press release), stating essentially that this development has changed nothing from their perspective:

“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Authors Guild executive director Paul Aiken said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”

Despite the lack of terms, it seems Google has entered into a blanket licensing agreement with the publishers.  The article in Wired, Google Gives Up Fair-Use Defense, Settles Book-Scanning Lawsuit With Publishers, suggests by its title that Google is abandoning the fair use argument it raised as a defense.  I doubt that the out-of-court settlement forecloses the argument in the remaining litigation or in the related HathiTrust litigation. 

The Guild seems determined to get a court to say that scanning whole titles without permission for snippet view in a search engine is not fair use.  A contrary ruling would not only civilly exonerate Google but give others the same opportunity.  Think of Amazon or Microsoft via its investment in Barnes & Noble’s Nook as possible competitors.  Then there are the foreign search engines such as Yandex in Russia and Alibaba in China who may also get in the game.

I think Google’s decision to settle is a smart move because it essentially puts the publishers’ interests against those of the Guild.  The AAP did not join the Guild in its subsequent suit against the HathiTrust.  The Second Circuit Court of Appeals is staying the Guild’s suit temporarily so Google can appeal the certification of a class action.  Judge Chin denied that request early in September, probably wanting to get the case out of his trial docket sooner than later.    The Guild ought to consider helping out Judge Chin.  My opinion is that it is easier to do business than to litigate.  A comparable settlement would prevent others from getting into the scanning game if the fair use argument is a ultimate winner at trial and on appeal.  [MG]