Rare Book Monthly

Articles - August - 2013 Issue

Google Wins a Small Victory in Long-Running Google Books Case

Gbjuly2013

A small victory for Google in a long-running case.

Google won a small victory in its eight-year-old Google Books litigation, a lawsuit where the major battles have gone against them. Google has been scanning old books to make their texts available online, reportedly up to 20 million now. Many are very old and clearly in the public domain, but others may or may not be under copyright, and for those that are, locating the copyright holders can be extremely difficult, if not impossible.

When Google began making portions of the texts of these books available, they were sued by the Authors Guild. The Guild demanded permission first be obtained from the copyright holders, even if finding them was virtually impossible. The two sides negotiated for a long time, and eventually reached a settlement. Google would publish only a small “snippet” of the text. If you wanted the rest, you had to buy it. The copyright holders would receive 63% of the payments, Google the other 37%. Authors could opt out or claim their share, and if they did neither, the money would be held in trust for them for a period of time, and then given to charity.

It sounded like a good deal, but many others objected. Some authors did not support the settlement, several of Google's competitors complained, and the heaviest hitter, the U.S. Department of Justice, also objected. Their complaint was that the law requires you must first obtain the copyright holders' permission, and the impossibility of doing so is no excuse. The law is the law. The trial judge, Denny Chin, agreed. Permission of the copyright holder is required, and the Authors Guild, he ruled, has no right to agree to a settlement on behalf of all of the copyright holders who are not members of their organization.

With that, it was back to square one. The Authors Guild reinstituted their suit against Google. This time, they also filed to represent a class action suit for damages on behalf of all of the copyright holders. The first step to such an action is to get the court to recognize the class. Judge Chin recognized them. He noted that requiring each copyright holder to sue individually would be far more costly, and risked having conflicting outcomes from the same set of circumstances.

Google appealed. It cited two major objections. Reminiscent of the claim that prevented the Authors Guild from settling on behalf of the copyright holders, Google said that the Guild could not represent the class of copyright holders as “many members of the class, perhaps even a majority,” approve of Google Books. After all, it does provide a potential source of income from old books, long out of print, unlikely otherwise to ever raise another dime for their authors. Google's second objection was on the “fair use” doctrine. This is a rule which allows you to use a limited amount of copyrighted material. For example, a book reviewer can't reprint or post online an entire copyrighted book, but he can post a few quotes from it. That is what Google believes it is doing in posting a couple of lines, a “snippet,” from the book in response to searches. That, they say, is traditional “fair use.”

On appeal, the Second Circuit Court did not rule on the first claim, whether the Auction Guild can fairly represent a class action. They did hint that they consider this a serious objection if it ever becomes necessary to decide on these grounds. They described the objections as “an argument which, in our view, may carry some force.” However, they overturned Judge Chin's ruling, at least for the moment, until the “fair use” argument can be decided.

What the Second Circuit concluded was that if it is determined that Google's posting of “snippets” constitutes “fair use,” there is no case for a class action suit for damages. If Google violated no laws, they cannot be sued for damages. So, rather then start an entire class action proceeding before knowing whether a wrong was committed, the appeals court sent the case back to Judge Chin to first decide whether Google had violated any rules, or whether displaying “snippets” from the books was legal “fair use.”

So now Judge Chin must decide whether this is “fair use.” If he finds that it is, this case is over. If he finds it is not, Google will undoubtedly appeal again. Then the appeals court can either overturn Judge Chin again, because it decides that this is “fair use,” or because it finds that the Authors Guild cannot represent a class which includes parties that approve of Google Books, or it can affirm Judge Chin's decision.

It must be noted that while this decision may lead to an end of this class action suit for damages, it will not address the bigger issue – what happens after a viewer sees the “snippet.” Under the earlier, disapproved settlement, the viewer could have purchased access to the rest of the book from Google. Without that settlement, or some other solution, the viewer will not be able to buy access to the rest of the book unless that particular copyright holder has granted Google permission. For all of those “orphan books,” ones whose copyright holders cannot be found, the viewer will not be able to look beyond the “snippet.” If they really want it, they will have to find an old copy for sale or find a library that holds it. They won't be able to click a button and begin reading the rest online.

Rare Book Monthly

  • <center><b>Cowan’s<br>American Historical Ephemera<br>& Photography<br>June 25, 2021</b>
    <b>Cowan’s, June 25:</b> [CIVIL WAR] -- [SHERIDAN, Philip Henry]. Personal headquarters flag of Philip Henry Sheridan used when he led the 2nd Michigan Cavalry. Spring - Summer 1862. $20,000 to $30,000.
    <b>Cowan’s, June 25:</b> [EARLY PHOTOGRAPHY]. Half plate daguerreotype of firefighter Walter Van Erven Dorens. [San Francisco]: n.p., [ca 1854-1856]. $15,000 to $25,000.
    <b>Cowan’s, June 25:</b> [LINCOLNIANA]. Abraham Lincoln banner possibly made for the 1864 presidential campaign. $10,000 to $15,000.
    <center><b>Cowan’s<br>American Historical Ephemera<br>& Photography<br>June 25, 2021</b>
    <b>Cowan’s, June 25:</b> [REVOLUTIONARY WAR - CONTINENTAL CONGRESS]. [HOLTEN, Dr. Samuel]. An archive of letters related to Danvers, Massachusetts, physician and statesman Dr. Samuel Holten. $10,000 to $15,000.
    <b>Cowan’s, June 25:</b> [UNION PACIFIC RAILROAD]. CARBUTT, John, photographer. Exceptional collection of 27 stereoviews from the series, "Excursion to the 100th Meridian, October 1866." Chicago, [1866]. $10,000 to $15,000.
    <b>Cowan’s, June 25:</b> [ALASKAN GOLD RUSH]. William Steele West and family, extensive archive of photographs, diaries, correspondence, and personal items. [Ca 19th - 20th century]. $8,000 to $12,000.
    <center><b>Cowan’s<br>American Historical Ephemera<br>& Photography<br>June 25, 2021</b>
    <b>Cowan’s, June 25:</b> [TAYLOR, Zachary]. Quarter plate daguerreotype featuring the 12th President of the United States. N.p.: n.p., [ca 1845]. $8,000 to $10,000.
    <b>Cowan’s, June 25:</b> [WASHINGTON, George]. Signed Society of the Cincinnati document. $5,000 to $7,000.
    <b>Cowan’s, June 25:</b> LINCOLN, Abraham. Autograph endorsement signed ("A. Lincoln"), as President. [Washington], 29 September 1862. 1 page, 4to, old creases. $5,000 to $7,000.
    <center><b>Cowan’s<br>American Historical Ephemera<br>& Photography<br>June 25, 2021</b>
    <b>Cowan’s, June 25:</b> JEFFERSON, Thomas. Autograph letter signed ("Th. Jefferson"), as United States President, to Robert Patterson. Washington DC, 2 July 1805. 1 page, 4to, evenly toned, small tear from seal. $4,000 to $6,000.
    <b>Cowan’s, June 25:</b> [EARLY PHOTOGRAPHY] -- [ALCOTT, Elizabeth Sewall]. Ninth plate ruby ambrotype attributed to Elizabeth Sewall Alcott. N.p., [ca 1856-1857]. $3,000 to $5,000.
    <b>Cowan’s, June 25:</b> [WESTERN AMERICANA]. RUSSELL, Andrew Joseph, photographer. <i>Salt Lake City, From the Top of the Tabernacle.</i> [1869]
  • <b><center>Sotheby’s<br>Livres et Manuscrits :<br>de Cervantès à Houellebecq<br>18 – 25 June</b>
    <b>Sotheby’s, 18 – 25 June:</b> Jouve, Paul -- François-Louis Schmied -- Rudyard Kipling. <i>Le Livre de la Jungle,</i> 1919.<br>€ 80,000 to € 120,000.
    <b>Sotheby’s, 18 – 25 June:</b> Cervantès Saavedra, Miguel de. <i>El ingenioso hidalgo Don Quixote de la Mancha.</i> Bruxelles, 1607.<br>€ 30,000 to € 50,000.
    <b>Sotheby’s, 18 – 25 June:</b> Buren, Daniel - Aimé Césaire. Cahier d'un retour au pays natal. Solstice, 2004. 1/140 ex. Avec 1/20 suites d'œuvres originales.<br>€ 4,000 to € 6,000.
    <b>Sotheby’s, 18 – 25 June:</b> [Musique] - Gioacchino Traversa. Six sonates à violon seul. [Vers 1770].<br>€ 3,000 to € 5,000.
  • <b>Swann Auction Galleries Jun 24:</b> C.F. Payne, <i>Micawber, Imitating Norman Rockwell’s “Triple self-portrait,”</i> mixed media, 2002. $800 to $1,200.
    <b>Swann Auction Galleries Jun 24:</b> Brian Froud, media illustration published in <i>The Land of Froud,</i> 1977. Estimate $6,000 to $9,000.
    <b>Swann Auction Galleries Jun 24:</b> Haddon Sundblom, <i>All a Girl Needs,</i> oil on canvas, published in <i>The Ladies’ Home Journal,</i> 1942. $8,000 to $10,000.
    <b>Swann Auction Galleries Jun 24:</b> Adrianne Lobel, <i>My One and Only,</i> 26 scenic concept collages for the Broadway musical, 1983. $6,000 to $9,000.
    <b>Swann Auction Galleries Jun 24:</b> Charles Schulz, original four-panel pen and ink <i>Peanuts</i> comic strip, 1971. $15,000 to $25,000.
    <b>Swann Auction Galleries Jun 24:</b>Jack Davis, mixed media cartoon for <i>Playboy,</i> 1959. $6,000 to $9,000.
    <b>Swann Auction Galleries Jun 24:</b> Charles Addams, mixed media cartoon for <i>The New Yorker,</i> 1937. $6,000 to $9,000.
  • <center><b>Galleri Bygdoy Allé<br>Sales Exhibition Catalogue 47<br>Part III<br>Antiquarian Temptations:<br>Rare Books, Atlases & Maps,<br>Photos & Manuscripts</b>
    <b>Galleri Bygdoy Allé:</b> PIETER MORTIER. “Le Neptune Francois ou Atlas Nouveau des Cartes Marines. Levées et Gravées par ordre Exprés du Roy…” Paris, 1693.
    <b>Galleri Bygdoy Allé:</b> MARC CHAGALL illus. SHAKESPEARE. “The Tempest.” Large folio. Monte-Carlo, 1975. Signed by the artist.
    <b>Galleri Bygdoy Allé:</b> JOHN SPEED and followers. “A New and Accurate Map of the World.” Hand-colored engraving. London (1626 – 1627 – circa 1650) – 1676.
    <center><b>Galleri Bygdoy Allé<br>Sales Exhibition Catalogue 47<br>Part III<br>Antiquarian Temptations:<br>Rare Books, Atlases & Maps,<br>Photos & Manuscripts</b>
    <b>Galleri Bygdoy Allé:</b> MATTHÄUS SEUTTER. “The Colossus Series.” Set of 4 prints, contemporary hand-colored engravings, each c. 57x49cm. Augsburg c. 1730
    <b>Galleri Bygdoy Allé:</b> (CHARLES LE BRUN). “La Grande Galerie De Versailles, et Les Deux Salons qui L’Accompagnent, peints Par Charles Le Brun premier Peintre de Louis XIV…” Paris, 1752.
    <b>Galleri Bygdoy Allé:</b> G. BRAUN – F. HOGENBERG. “Danorum Marca.” Contemporary hand-colored engraving, 33x48cm. Cologne, 1588.
  • <b>Bonhams, June 29:</b> LIFE OF OSLER, PRESENTATION COPY TO NEPHEW NORMAN GWYN. CUSHING, HARVEY. 1869-1939. <i>The Life of Sir William Osler.</i> Oxford: Oxford University Press, 1925. $1,500 to $2,500.
    <b>Bonhams, June 29:</b> OSLER TO HALSTED MENTIONING CUSHING AND WELCH. Autograph Letter Signed ("Wm Osler") to William Stewart Halsted on medical matters, 2 pp, January 19, 1919. $1,500 to $2,500.
    <b>Bonhams, June 29:</b> CUSHING PRESENTATION COPY TO LUCIEN PRICE. CUSHING, HARVEY. <i>Intracranial Tumours.</i> Springfield, 1932. $1,000 to $1,500.
    <b>Bonhams, June 29:</b> OSLER ON HIS CHILDHOOD. Autograph Letter Signed ("Wm Osler") to Mabel [Brewster] on returning home to Staplehurst. $800 to $1,200.
    <b>Bonhams, June 29:</b> SCULTETUS, JOHANNES. 1595-1645. <i>Cheiroplotheke, seu armamentarium chirurgicum XLIII.</i> Ulm: Balthasar Kühnen, 1655. $3,000 to $4,000.
    <b>Bonhams, June 29:</b> VICQ D'AZYR, FELIX. 1748-1794. <i>Traite d'anatomie et de physiologie.</i> Paris: Didot l'aine, 1786. $3,000 to $5,000.
    <b>Bonhams, June 29:</b> TAGAULT, JEAN. C.1499-1546. <i>De chirugica institutione libri quinque....</i> Lyon: Guillaume Rouillé, 1549. $400 to $600.
    <b>Bonhams, June 30:</b> EDWARD S. CURTIS (1868-1952). Autograph Logs and Journals from his 1927 Alaska Expedition. $7,000 to $ 9,000.
    <b>Bonhams, June 30:</b> EDWARD S. CURTIS (1868-1952). Cañon de Chelley, 1904. Oversized orotone, 17 x 22in in original Curtis Studio frame. $30,000 to $50,000.
    <b>Bonhams, June 30:</b> EDWARD S. CURTIS (1868-1952). 26 cyanotypes, featuring images of Cheyenne tribes from Volume VI of <i>North American Indian,</i> c.1907, made by Curtis in the field. $30,000 to $50,000.
    <b>Bonhams, June 30:</b> EDWARD S. CURTIS (1868-1952). The Vanishing Race, 1904. Oversized orotone, 18 x 24in in original Curtis Studio frame. $20,000 to $30,000.

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