Judge Postpones Google Books Trial to July 2012 – But Settlement Could Come Sooner

The oft delayed Google Books trial has been put off again – this time until July of 2012. However, parties to the suit are hopeful a settlement can be reached sooner. Then again, a settlement was reached once before, only to be thrown out by a judge after the government, certain authors, and Google competitors, objected to the proposed agreement. In a separate development, one of the parties to the earlier agreement, the Authors' Guild, sued the HathiTrust in a related case. This is all quite confusing, so we will attempt to provide a scorecard. As to why this all matters, suffice it to say that it does. At stake is access to the content of millions of old books, and the knowledge and information within them. There is much the educated and thinking world stands to lose if private interests, often petty and more theoretical than actual, are able to scuttle this massive knowledge expanding project.

This case goes back seven years now. In 2004, Google announced that it would begin scanning millions of old books, making their content available digitally through the internet. Numerous university and other major public libraries agreed to provide access to their books in return for being able to provide their patrons with digital access to copies. The project promised to make the text of millions of old books, no longer available either for purchase or in most libraries, available to the public once again, only this time from anyplace on earth with a connection to the internet. It promised to give new life to reams of learning seemingly lost to time. How could anyone be anything but pleased with this once unimaginable development?

It turned out lots of people were displeased. Authors and publishers feared they would lose out on royalty income. Google's competitors feared advantages this might bring them. The government believed Google was skirting the letter of the copyright law. Ultimately, groups representing authors and publishers went to court to try to force Google to stop.

The issue centered around out of print books published after 1922. Earlier books are out of copyright and anyone can do what they want with them. Those published after 1922 may still be subject to copyright, depending on a number of factors. The letter of the law says that the copyright holder (be it author or publisher) must grant permission for the book to be copied. Unfortunately, seeking permission is not so easy. How does one contact the copyright holder of an obscure book published 80 years ago? You might try contacting the publisher first, but something like half of those publishers no longer exist, and those that do probably long ago lost contact with all but the best known authors. Indeed, most of those authors would have died years ago, and their children, who would have inherited those rights, are probably dead now too. The copyright may now be shared by a dozen scattered grandchildren or great-grandchildren, none of whom ever made a nickel off of the copyright, nor are they even aware that they are owners of a copyrighted work that last earned a royalty long before they were born.

Nonetheless, the author and publisher groups sued, whereupon Google sat down with them and hammered out a settlement. Google agreed to only make small “snippets” of the text of books that might still be under copyright available free. To see more, you would have to buy the book. Then, 63% of the proceeds of the sales would be set aside for the copyright holders. However, the copyright holders would have to make themselves known to Google, since that firm had no idea who they were or where to find them. Any copyright holder who did not like this arrangement could simply tell Google “no thanks” and their books would be removed from the database.

Once authors and publishers were satisfied with the arrangement, that should have brought an end to the controversy, no? No dice. Other authors and publishers refused to accept the Authors Guild and AAP (Association of American Publishers) as their representatives. Even though they could freely opt out of the settlement, they chose to stand up for the sanctity of the principle of permission-first for copyrights,even though neither they nor the long lost holders of essentially worthless copyrights were being harmed. The government also objected, being sticklers for the letter of the law, again even though much good and little harm could come from the settlement. Google's competitors also objected, for obvious if not relevant reasons. And the objectors won. They went to court to stop the settlement of the original lawsuit, and effectively defeated it. Judge Denny Chin ruled the settlement was a “bridge too far.” However, rather than simply strike it down, he told the original settlers to go back and try to reach a settlement that better fit the precise wording of the copyright law.

After several delays, the parties met with the Judge again in mid-September, but still had been unable to reach a revised settlement they believed would pass muster. So, the Judge scheduled a new trial on the original lawsuit for July 2012. Ironically, this is a trial on the suit of the Authors Guild and AAP vs. Google, the parties who had reached a settlement of their differences, only to have their agreement thrown out after objections by others. However, the original parties hope that their suit will never come to trial. They are hoping a revised settlement can be reached long before July 2012 rolls around.

Apparently, the AAP and Google are very close to reaching a new settlement. AAP President Tom Allen released a statement saying, “the Association of American Publishers, the five publisher plaintiffs and Google have made good progress toward a settlement that would resolve the pending litigation regarding the Google Library Project.” However, there appears to be some breaking of ranks between the AAP and the Authors Guild. The gap between the Authors Guild and Google remains wider, though both sides hope it too can be bridged without going to trial.

Of course, a revised settlement will still have to obtain the approval of Judge Chin, who seems unwilling to approve one that does not require Google to obtain copyright holder permission first. How Google is to do this with so-called “orphan books,” those whose copyright holders are virtually impossible to locate, remains something of a mystery. The reason for having such a settlement in the first place is to get around the permission-first requirement of copyright law when it comes to “orphan books.”

Meanwhile, a second attempt to make “orphan books” available digitally in a more limited scope has run into the same problem. A consortium of university libraries, known as the “HathiTrust,” plans to make a small number of such books available digitally in their own libraries this month (see article elsewhere in this month's issue of AE Monthly). These are libraries who provided books for scanning to Google and as a result obtained copies of those scans. They only plan to make digital copies of “orphan books” from their own collections available to patrons in their own libraries, and this 90 days after posting a call for copyright holders who object to come forward. Not good enough. Once again, the Authors Guild, and a few similar overseas groups, have filed suit, just as they did against Google years ago. No settlement, no deal, and who knows whether a settlement with the HathiTrust would hold up any better than the one with Google. There are “fair use” exceptions which may give the HathiTrust a better chance than Google. Among the differences that allow for exceptions are non-profit and single copy uses, but the Authors Guild does not believe they are sufficient to permit unapproved copying. In their complaint, the Authors Guild described the HathiTrust action as “one of the largest copyright infringements in history.” Once again, the process goes to court.

The logical place to fix this problem is the halls of Congress. Ancient copyright wording from the pre-digital era is not well-suited for today's world. And, Congress exacerbated the problem in the 1990s when it extended the already substantial length of older copyrights, from a maximum of 56 to 95 years. Not that dead authors were complaining about their copyrights expiring, but the Disney Company was about to lose their exclusive right to Mickey Mouse if its copyright was not extended. Hence, Congress passed this piece of Mickey Mouse legislation. As Judge Chin broadly hinted, it's Congress' job to deal with this issue, but Congress doesn't like to fix its messes unless someone with the deep pockets of a Disney wants it fixed. So we all, as small pockets seekers of knowledge, twist in the wind, as this battle over rights that are worth virtually nothing drags on and on. If you are wondering why there are still people in Libya clinging to the regime of Moammar Ghadafy, even with the prospects of democracy within reach, it may be because they have looked at America's democratically elected legislature and said, “Why bother?”