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

  • <b><center>Sotheby’s<br>Bibliothèque littéraire<br>Hubert Heilbronn<br>11 May 2021</b>
    <b>Sotheby’s May 11:</b> Breton, André. <i>Nadja.</i> Paris, N.R.F., Gallimard, 1928. €15,000 to €20,000.
    <b>Sotheby’s May 11:</b> [Stendhal, Henri Beyle dit]. <i>Le Rouge et le Noir,</i> chronique du XIXe siècle. Paris, Levavasseur, 1831. €20,000 to €30,000.
    <b>Sotheby’s May 11:</b> Dumas, Alexandre. <i>Les Trois mousquetaires.</i> 1844. 8 vols. In 4. Paris, Baudry, 1844. €30,000 to €50,000.
    <b>Sotheby’s May 11:</b> Mallarmé, Stéphane -- Edgar Allan Poe. <i>Les Poèmes d’Edgar Poe.</i> Bruxelles, Edmond Deman, 1888. €18,000 to €25,000.
    <b>Sotheby’s May 11:</b> Proust, Marcel. <i>Le côté de Guermantes II. Sodome et Gomorrhe I. [and] Sodome et Gomorrhe II.</i> Paris, N.R.F., 1921 et 1922. €20,000 to €30,000.
  • <b>Swann Auction Galleries, May 12:</b> <i>Westvaco–Inspirations for Printers,</i> 3 volumes, 1938-61. $200 to $300.
    <b>Swann Auction Galleries, May 12:</b> Proef van Letteren, <i>Welk gegooten worden in de Nieuwe Haerlemsche Lettergietery,</i> 1768. $3,000 to $4,000.
    <b>Swann Auction Galleries, May 12:</b> Paul Klee, <i>Bauhaus Ausstellung Juli – Sept.,</i> Weimar, 1923. $4,000 to $6,000.
    <b>Swann Auction Galleries, May 12:</b> Michel Seuphor & Jozef Peeters, <i>Het Overzicht Nos.</i> 22-23-24, Antwerp, 1922. $3,000 to $4,000.
    <b>Swann Auction Galleries, May 12:</b> Wolfrum & Co., <i>Modern Graphik, Serie I…,</i> complete portfolio, 1909. $1,200 to $1,800.
    <b>Swann Auction Galleries, May 12:</b> <i>Gravure et Fonderie deC. Derriey: Specimen-Album,</i> Paris, 1862. $5,000 to $7,500.
  • <center><b>Dominic Winter Auctioneers<br>12/13 May<br>Printed Books, Maps & Prints, Numismatic Books from the Milne-Henderson Collection</b>
    <b>Dominic Winter, 12/13 May:</b> Mariette (Pierre-Jean). <i>Traité des pierres gravées / Recueil des pierres gravées...,</i> 2 vols., 1750. £1,000 to £1,500.
    <b>Dominic Winter, 12/13 May:</b> [Bryant, Jacob & William Cole]. <i>Gemmarum Antiquarum Delectus, [Marlborough Gems],</i> 2 volumes, [privately printed, 1780-83], £800 to £1,200.
    <b>Dominic Winter, 12/13 May:</b> Caylus (Anne Claude Philippe, Comte de). <i>Recueil d'Antiquités Egyptiennes, Estrusques, Grecques et Romaines,</i> 7 volumes, Paris, 1756-67, £700 to £1,000.
    <center><b>Dominic Winter Auctioneers<br>12/13 May<br>Printed Books, Maps & Prints, Numismatic Books from the Milne-Henderson Collection</b>
    <b>Dominic Winter, 12/13 May:</b> Devonshire Gems. <i>Duke of Devonshire's Collection of Gems,</i> privately printed, c. 1790, [one of 8 copies], £1,500 to £2,000.
    <b>Dominic Winter, 12/13 May:</b> Goltz (Hubert). <i>Le Vive Imagini di tutti quasi gl'Imperatori,</i> Antwerp, 1557, £500 to £800.
    <b>Dominic Winter, 12/13 May:</b> Manuscript. <i>An Explanation of Dassier's Medals, by Charlotte Hanbury,</i> c. 1795-1800, £700 to £1,000.
    <center><b>Dominic Winter Auctioneers<br>12/13 May<br>Printed Books, Maps & Prints, Numismatic Books from the Milne-Henderson Collection</b>
    <b>Dominic Winter, 12/13 May:</b> Paoletti (Bartolomeo and Pietro). A collection of 300 plaster cameos presented in 7 leather-bound double-sided faux book boxes, Rome, c. 1820, £2,000 to £3,000.
    <b>Dominic Winter, 12/13 May:</b> Mayer (Luigi). <i>Views in Egypt, from the Original Drawings, in the Possession of Sir Robert Ainslie,</i> London: Thomas Bensley for R. Bowyer, 1805, £2,000 to £3,000.
    <b>Dominic Winter, 12/13 May:</b> Blaeu (Willem Janszoon & Johannes). <i>Theatrum orbis terrarum, sive Atlas novus, pars quarta</i> [England and Wales], Amsterdam: Johannem Blaeu, 1648, £6,000 to £8,000.
    <center><b>Dominic Winter Auctioneers<br>12/13 May<br>Printed Books, Maps & Prints, Numismatic Books from the Milne-Henderson Collection</b>
    <b>Dominic Winter, 12/13 May:</b> Reuter (O.M. & Mela, A.J.). <i>Finlands Fiskar. The Fishes of Finland,</i> 12 parts (complete), Helsingfors: G.W. Edlund, 1883-93, £500 to £800.
    <b>Dominic Winter, 12/13 May:</b> Lunardi (Vincenzo). <i>An Account of the First Aerial Voyage in England,</i> 2nd edition, London: Printed for the Author, 1784, £700 to £1,000.
    <b>Dominic Winter, 12/13 May:</b> North America. Jansson (Jan). <i>Virginiae partis Australis et Floridae partis Orientalis,</i> circa 1641. £400 to £600.
  • <center><b>Hindman Auctions<br>Fine Books & Manuscripts,<br>Including Americana<br>Live and Online<br>May 12, 2021</b>
    <b>Hindman Auctions, May 12:</b> CURRIER and IVES, publishers -- After Frances F. Palmer. The Rocky Mountains. Emigrants Crossing the Plains, 1866. $10,000 to $15,000.
    <b>Hindman Auctions, May 12:</b> [BIBLE, in English]. <i>The New Testament of Jesus Christ, translated faithfully into English.</i> Rheims, 1582. $6,000 to $8,000.
    <b>Hindman Auctions, May 12:</b> [BIBLE, in Latin]. <i>Biblia latina.</i> Venice: Franz Renner of Hailbrun [Heilbrunn], 1483. $3,000 to $4,000.
    <center><b>Hindman Auctions<br>Fine Books & Manuscripts,<br>Including Americana<br>Live and Online<br>May 12, 2021</b>
    <b>Hindman Auctions, May 12:</b> SHELLEY, Percy Bysshe (1792-1822). Autograph letter signed ("P. B. S."), to Charles Ollier. Florence, Italy, 15 December 1819. “MY PROMETHEUS IS THE BEST THING I EVER WROTE.” $3,000 to $4,000.
    <b>Hindman Auctions, May 12:</b> RAMSAY, David (1749-1815). <i>The History of the Revolution of South-Carolina…</i> Trenton: Isaac Collins, 1785. $3,000 to $4,000.
    <b>Hindman Auctions, May 12:</b> [BINDINGS]. MUIR, John (1838-1914). <i>The Writings of John Muir.</i> Boston and New York: Houghton Mifflin Company, 1916-1924. 10 vols. $2,000 to $3,000.
    <center><b>Hindman Auctions<br>Fine Books & Manuscripts,<br>Including Americana<br>Live and Online<br>May 12, 2021</b>
    <b>Hindman Auctions, May 12:</b> [CHICAGO] -- <i>Park & Guide Map of Chicago.</i> Chicago: Jas. Van Vechten, 1873. $2,000 to $3,000.
    <b>Hindman Auctions, May 12:</b> CURRIER and IVES, publishers -- After Frances F. Palmer. $2,000 to $3,000.
    <b>Hindman Auctions, May 12:</b> [ALLEN PRESS]. SHAKESPEARE, William (1564-1616). <i>Romeo and Juliet.</i> Greenbrae: Allen Press, 1988. $1,000 to $1,500.
    <center><b>Hindman Auctions<br>Fine Books & Manuscripts,<br>Including Americana<br>Live and Online<br>May 12, 2021</b>
    <b>Hindman Auctions, May 12:</b> BEMELMANS, Ludwig (1898-1962). Pencil drawing on paper. 247 x 198 mm, sight, matted and framed. Showing a child shooting at a baby's balloon. $1,000 to $1,500.
    <b>Hindman Auctions, May 12:</b> [LOGAN ELM PRESS]. HARVEY, Rebecca. <i>Any Number of Things.</i> Ohio State University, 2013. Single sheet paper scroll. $800 to $1,200.
    <b>Hindman Auctions, May 12:</b> BINYON, Laurence (1869-1943). A small archive of letters and pamphlets. $200 to $300.

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