Google Book Search
Settlement
: An Overview
Kylie Pappalardo
QUT School of Law
What is the Google Book Search Project?
• In 2004, Google launched the Google Print
Project, which was subsequently renamed the
Google Book Search Project in November 2005
• Google’s intention was to digitize the world’s
collection of books
• Google planned to scan as many books as
possible and make these scans available (in a
limited fashion) to users online
• Potentially revolutionary for research
http://books.google.com/
A “library of Alexandria for the digital age”?
“A Rainbow of Books”,
Dawn Endico, licensed
under Creative Commons
Attribution Share Alike 2.0
Generic licence,
http://www.flickr.com/phot
os/candiedwomanire/1651
870/
Taking a step back: Access to literature
• The open access (OA) movement aims to promote
the dissemination of knowledge broadly and freely
across the internet in a timely fashion
• Usually, we are talking about academic articles /
papers
• Largely came about as a result of
the “serials crisis”
Why Open Access?
• Researchers should not have to pay to access and use
content that they provided, reviewed and edited for
free
• Enables greater use of a work, both by the author and
by others
• Helps authors to control their work, by allowing them
to decide what uses of the work can be made by free
• Knowledge is a public good
• Where research is publicly-funded, the public should
not have to pay AGAIN to access research results
Why Open Access?
• When researchers cannot access relevant research
literature, it slows research development
• There are ethical arguments to support OA for
those who cannot afford to pay and to distribute
the public good of knowledge equitably amongst
all who can make use of it
• OA provides greater visibility to a researcher’s
work, resulting in more citations and greater
research impact
How is OA achieved?
• Most commonly, by deposit in an OA repository
• These are usually institutionally (university) based
• Academics/researchers can deposit (‘self-archive’)
their articles into the repository
• Makes the work openly accessible to the public –
searchable via Google
• Some articles available to read only; others available
for reuse under copyright licences - what uses are
allowed depends on copyright arrangements between
author and publisher
OA repositories
• QUT has an ePrints repository: http://eprints.qut.edu.au/
How does this translate to books?
• Some of the arguments are the same – knowledge as
a public good; equitable access to information
• Particularly for academic/research works [not
novels]
• We see these arguments made later, by academics
such as Pam Samuelson
• Google Book Search Project as one giant OA
repository?
Google Book Search Project
Two limbs:
Google Publisher
• Opt-in for publishers – Google scans books as provided
by the publisher
• Publisher specifies level of access and use permitted for
the public re: scanned book
Google Library
• Google scans books in partner libraries, with consent of
the libraries but not necessarily publishers
• Opt-out for publishers
Google Library – original access regime
3 categories of the 18 million books scanned:
In © in
print
9% of total
Access
determined
by © owner
In © out
of print
75% of total
Snippet
access
Public
Domain
16% of total
Full access
for free
Source: http://www.lessig.org/blog/2006/01/google_book_search_the_argumen.html
Snippet access: example
Pride and Prejudice, Jane Austen, Spark Educational Publishing, 2004
http://books.google.com/books?id=vjy7O6kCH0wC&dq=subject:%22+Literature+%22&as_brr=3&rview=1&so
urce=gbs_navlinks_s
Search term: truth
The lawsuit
• In 2005, the Authors Guild (AG) and the Association of
American Publishers (AAP) sued Google for “massive
copyright infringement”
• This was a class action suit – representing all authors
with an interest affected by the Google Book Search
Project
• A number of US copyright scholars felt that Google
would have won the suit on fair use grounds
• But this was never determined, because the AG/AAP and
Google negotiated a settlement
The lawsuit: AAP and AG’s arguments
• Google had “reduced the value of those works to the
rights holders, caused lost profits, and damaged the
goodwill and reputation of those rights holders”.
• Google’s use was NOT fair use because:
 Google’s use was commercial (profit from advertising)
 Systematic users could patch together significant
portions of a book from snippets provided by Google
 Google’s opt-out policy reversed the usual burden of
notification
The lawsuit: AAP and AG’s arguments
• Even if the snippets were fair use, Google had to
copy entire works to make snippets available, which
was not fair use
• Relied on UMG Recordings, Inc. v. MP3.com Inc 92
FSupp 2d 349 (SDNY 2000)
The lawsuit: Google’s arguments
• The Book Search Project WAS fair use because:
 Indexing would help sell books, generating revenue for
rights holders
 It does not violate the law to sell advertisements next to
fair use snippets
 The argument that snippets could be patched together
does not preclude fair use – it is true of every kind of fair
use
 Opt-out is the standard for indexing web-content and the
entire project would be virtually impossible otherwise
The lawsuit: Google’s arguments
• The project is fair use because it does not offer a
substitution for the original work, but rather an
advanced index that refers back to the original work
in a way that provides value to that work
• Relied on Kelly v Arriba Soft 336 F.3d 811 (Cal.
2003)
A perspective on the lawsuit
“[Google is] bent on unilaterally changing copyright law to their
benefit and in turn denying publishers and authors the rights
granted to them by the U.S. Constitution…[The lawsuits against
Google are] needed to halt the theft of intellectual property. To see it
in any other way is intellectually dishonest.”
Pat Schroeder and Bob Barr, ‘Reining in Google,’ Washington Times
(Washington), 3 November 2005
http://www.washingtontimes.com/news/2005/nov/02/20051102093349-7482r/ at 8 April 2010
A perspective on the lawsuit
“As both an author and publisher, I find the [Authors] Guild's
position to be exactly backward…A search engine for books will be
revolutionary in its benefits. Obscurity is a far greater threat to
authors than copyright infringement, or even outright
piracy…Google Library is intended to help readers discover
copyrighted works, not to give copies away. It's a tremendous
service to authors that will help them beat the dismal odds of
publishing as usual.”
Tim O’Reilly, ‘Search and Rescue’, New York Times (New York), 28
September 2005
<http://www.nytimes.com/2005/09/28/opinion/28oreilly.html>
at 9 July 2009.
Lawrence Lessig on the lawsuit
• http://www.lessig.org/blog/2006/01/google_bo
ok_search_the_argumen.html
“2008_04_05_lessig-ames_08”,
dsearls (Doc Searls), licensed under
Creative Commons Attribution Share
Alike 2.0 Generic licence,
http://www.flickr.com/photos/docsearls
/2389118085/
The original settlement timeline
28 October 2008: Google, AAP and AG reach a Settlement
Agreement, subject to court approval
The Settlement Agreement binds all persons who as at 5
January 2009 own a ‘U.S. copyright interest’ in one or more
books affected by the settlement
17 November 2008: Judge John E. Sprizzo gave
preliminary approval to the Settlement Agreement
4 September 2009: opt-out deadline for authors who do
not want to be bound by the Settlement Agreement
7 October 2009: final fairness hearing
Original Settlement Agreement: terms
• Settlement affected:
• books published before 5 January 2009
• Authors and publishers within the US, and outside the US if the
book was published in the US or the author or publisher’s
country has copyright relations with the US because it is a
member of the Berne Convention
• Google must pay minimum US $45 million to Class
members, to be distributed as cash payments of US $60
per Principal Work, US $15 per Entire Insert and US $5
per Partial Insert
Original Settlement Agreement: terms
• Google must pay US $34.5 million to establish the Book
Rights Registry, which will coordinate payments and
represent interests of Rightsholders
• Google may sell advertising on online book pages,
Institutional Subscriptions to the book database and
Consumer Purchases to individual users (which allow a
user to view online the full contents of a book), but must
pay 63% of all revenues earned to the Rightsholders
Original Settlement Agreement: terms
• Google is given the right to digitize and display (to
different extents) all books.
• Google will classify a book as a ‘Display Book’ if it is not
commercially available at the notice commencement
date and as a ‘No Display Book’ if it is commercially
available.
• Commercially available = the Rightsholder is offering the
book for sale new through one or more then-customary
channels of trade in the United States.
Original Settlement Agreement: terms
• No Display Books = cannot display expression from the book,
only bibliographic information
• For Display Books, can make Display Uses:
• Snippet Display
• Front Matter Display
• Access Uses – Institutional Subscriptions, Consumer Purchase and
Public Access Services
• Preview Uses – a free preview to allow users to sample a book
prior to making a purchase decision – Standard Preview is up to
20% of pages of a book (+ Front Matter Display) but no more than
5 adjacent pages at a time, before or after which at least 2 pages
must be blocked [The standard can be changed at the request of
the Rightsholder]
Original Settlement Agreement: terms
• Institutional Subscriptions – provided to institutions for
a fee; allows access to entire database; users given some
rights to copy/paste and print pages of books
• Consumer Purchase – allows a user, for a fee, to access
and view online the full contents of a Display Book; user
given some rights to copy/paste and print
• Public Access Services – provided to each public library
and not-for-profit higher education institution; provides
access to entire database for free on a limited number of
computer terminals; users may print pages from Display
Books for a per-page fee
The settlement: public benefits
• The entire books database may be used for ‘NonConsumptive Research’ (i.e. computational analysis) –
useful for linguistics studies etc.
• The Public Access Service
• The Settlement Agreement grants greater access to the
digitized books than would be allowed under fair use (i.e.
more than just snippets)
• The Google Book Search Project makes accessing out-ofprint works much easier
• Greater access for persons with print disabilities
Settlement issues: Fair Use
• By settling this case, Google has removed from the public
the possibility of a new (wider) fair use precedent. No
one other than Google has the resources to fight this
kind of battle out to the end. Thus, the opportunity for
others to move into this space legally (without
negotiation) has been removed – at least for the
immediate future.
A perspective on the “lost fair use
precedent”: Lessig
“2008_04_05_lessig-ames_08”,
dsearls (Doc Searls), licensed
under Creative Commons
Attribution Share Alike 2.0
Generic licence,
http://www.flickr.com/photos/doc
searls/2389118085/
A perspective on the “lost fair use
precedent”
• One of the greatest ramifications of this settlement is that in will set
in motion a way of thinking about gaining access to culture that
moves us away from a library model and towards a model that
requires us to buy access to our cultural works
• A digital bookstore of Alexandria
• This is the result of publishers pushing to extend their hold in the
market – a publisher’s lifespan in the physical market in relation to a
particular book is a year or two at most, but in the digital market, it is
potentially the entire length of copyright protection
Lawrence Lessig at the Copyright Future: Copyright Freedom
conference in Canberra, 27-28 May 2009
A perspective on the “lost fair use
precedent”
“Google was the defendant; it earned that dubious privilege by
actually scanning and searching books. Having stepped up to the
plate to risk a lawsuit, and having been beaned with one, Google
now has the right to choose whether to settle that suit. Google’s
choice to settle takes away no legal rights from anyone else; no one
else loses the fair use argument because Google didn’t chance it.”
James Grimmelmann, “How To Fix The Google Book Search
Settlement”, Journal of Internet Law, Volume 12, Number 10, April
2009, p12, available from SSRN at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1363843.
Settlement issues: Public Access
• Harvard University Librarian, Robert Darnton, has
suggested that a single public access computer terminal
per public library building is not enough
• Pam Samuelson and other academics argued that the
Settlement did not allow rights holders to direct that
their book be available for free or under an open content
licence such as Creative Commons (esp. relevant to
academic books)
A perspective on public access:
Robert Darnton
“Harvard University”, jrgcastro,
licensed under Creative
Commons Attribution Non
Commercial Share Alike 2.0
Generic licence,
http://www.flickr.com/photos/jrgc
astro/3220824662/
A perspective on public access
“Looking back over the course of digitization from the 1990s, we now
can see that we missed a great opportunity. Action by Congress and the
Library of Congress or a grand alliance of research libraries supported
by a coalition of foundations could have done the job at a feasible cost
and designed it in a manner that would have put the public interest
first. By spreading the cost in various ways—a rental based on the
amount of use of a database or a budget line in the National
Endowment for the Humanities or the Library of Congress—we could
have provided authors and publishers with a legitimate income, while
maintaining an open access repository or one in which access was based
on reasonable fees. We could have created a National Digital Library—
the twenty-first-century equivalent of the Library of Alexandria. It is too
late now. Not only have we failed to realize that possibility, but, even
worse, we are allowing a question of public policy—the control of access
to information—to be determined by private lawsuit.”
Robert Darnton, “Google & the Future of Books”, The New York Review of Books,
Volume 56, No. 2, 12 February 2009, http://www.nybooks.com/articles/22281.
Perspectives on public access
“So much for the promise of the digital
age. This sounds more like the age of
the CD-ROM.”
Richard K. Johnson, “BackTalk: Free (or Fee) to All?” (2008)
http://www.libraryjournal.com/article/CA6624784.html
(Richard K. Johnson was the Founding Executive Director of SPARC (the Scholarly
Publishing and Academic Resources Coalition) from 1998 to 2005)
A perspective on public access:
Pam Samuelson
Perspectives on public access
“We believe that most scholarly authors of out-of-print
books would prefer to make their books widely available
with either no or minimal restrictions. We are concerned
that an Authors Guild or AAP-dominated Book Rights
Registry (BRR) will have an institutional bias against
helping academic authors who might want to put their
books in the public domain or make them available
under Creative Commons licenses.”
Letter from Pamela to Judge Denny Chin, Authors Guild, Inc. v. Google Inc.,
No. 1:05 CV 8136, (S.D.N.Y. April 27, 2009), available at
http://thepublicindex.org/docs/motions/approval/samuelson.pdf
A perspective on public access:
University of California Academic Council
“Open Access”, AJC1, licensed under Creative
Commons Attribution Non Commercial Share Alike
2.0 Generic licence,
http://www.flickr.com/photos/ajc1/4051820019/
Perspectives on public access
“Specifically, we are concerned that the Authors Guild negotiators likely
prioritized maximizing profits over maximizing public access to
knowledge, while academic authors would have reversed those
priorities. We note that the scholarly books written by academic authors
constitute a much more substantial part of the Book Search corpus than the
Authors Guild member’s books…[UC] has made a major commitment in recent
years to promote open access of research materials produced by its own and
other researchers. Many UC faculty now routinely post their work in open access
repositories, and UC has done much to promote the open access preferences of
faculty members…However, the [settlement] agreement does not explicitly
acknowledge that academic authors might want to make their books, particularly
out-of-print books, freely available by dedicating their books to the public
domain or making them available under a Creative Commons or other open
access license…We are concerned that the BRR will have an
institutional bias against facilitating these kinds of unfettered public
interest, open access alternatives.”
Letter from the Academic Council, Univ. of Cal., to Judge Denny Chin, Authors Guild,
Inc. v. Google Inc., No. 1:05 CV 8136 (S.D.N.Y Aug. 14, 2009)
http://thepublicindex.org/docs/letters/ucfaculty.pdf
Response: Amended Settlement
Agreement
• 4.8 Public Access Service - amended (3): “in the
case of each Public Library, [deleted - no more than] one
terminal per Library Building; provided, however, that
the Registry may authorize one or more additional
terminals in any Library Building under such further
conditions at it may establish, acting in its sole discretion
and in furtherance of the interests of all Rightsholders.
Response: Amended Settlement
Agreement
• 4.2 (a) (i) inserted:
Alternative License Terms. In lieu of the basic features of
Consumer Purchase set forth in Section 4.2(a) (Basic Features
of Consumer Purchase), a Rightsholder may direct the Registry
to make its Books available at no charge pursuant to one of
several standard licenses or similar contractual permissions for
use authorized by the Registry under which owners of works
make their works available (e.g. Creative Commons Licenses),
in which case such Books may be made available without the
restrictions of such Section.
• 4.2 (b)(i)(1) “Specified Price” - Inserted brackets: “In this
option, the Rightsholder identifies the price (which may be as low as
$0.00) for which it wants its Book authorized for Consumer
Purchase to be sold.”
Settlement issues: Orphan Works
• The settlement applies to orphan works, which some
argue should be the subject of legislative intervention
allowing greater access to and use of orphan works after
sufficient search for the copyright owner
• Orphan works = (at its broadest definition) works for
which the copyright owner is unknown, cannot be
identified or cannot be located so as to be able to ask for
permission to use the work
A perspective on orphan works:
Department of Justice (DOJ)
“FBI”, Carsten Lorentzen,
licensed under Creative
Commons Attribution 2.0
Generic licence,
http://www.flickr.com/photos/l
orentzen/2943254973/
Perspectives on orphan works
“As a threshold matter, the central difficulty that the Proposed Settlement
seeks to overcome – the inaccessibility of many works due to the lack of
clarity about copyright ownership and copyright status – is a matter of
public, not merely private, concern. A global disposition of the rights to
millions of copyrighted works is typically the kind of policy change
implemented through legislation, not through a private judicial
settlement…the Proposed Settlement would establish a marketplace in
which only one competitor would have authority to use a vast array of
works – especially so-called “orphan” works – that may provide significant
value both to Google and to the Registry, a collective which would control
exploitation of those works.”
Statement of Interest by the U.S. Dep’t. of Justice (DOJ) Regarding the
Proposed Settlement, Authors Guild, Inc. v. Google Inc., No. 1:05 CV 8136
(S.D.N.Y. Sept. 18, 2009), available at
http://thepublicindex.org/docs/letters/usa.pdf
Response: Amended Settlement
Agreement
• Not addressed in the Amended Settlement
Agreement
• This problem (and some others) could be completely
erased by making the Project opt-in rather than optout
• But Google won’t do this. Why? Too valuable.
• Orphan works issues in the US may still be resolved
by legislation: http://www.copyright.gov/orphan/
Settlement Issues: Antitrust
• In July 2009, the US Department of Justice (DOJ)
launched an antitrust inquiry into the settlement – to
consider Google’s potential monopoly in the book
digitization market and the effect of establishing the
Book Rights Registry
A perspective on antitrust:
Department of Justice (DOJ)
“FBI”, Carsten Lorentzen,
licensed under Creative
Commons Attribution 2.0
Generic licence,
http://www.flickr.com/photos/l
orentzen/2943254973/
Perspectives on Antitrust
“In the view of the Department, the Proposed Settlement raises two serious
issues. First, through collective action, the Proposed Settlement appears to
give book publishers the power to restrict price competition. Second, as a
result of the Proposed Settlement, other digital distributors may be effectively
precluded from competing with Google in the sale of digital library products
and other derivative products to come….
…Google’s competitors are unlikely to be able to obtain comparable
rights independently. They would face the same problems – identifying
and negotiating with millions of unknown individual rightsholders – that
Google is seeking to surmount through the Settlement Proposal. Nor is it
reasonable to think that a competitor could enter the market by copying books
en masse without permission in the hope of prompting a class action suit that
could then be settled on terms comparable to the Proposed Settlement. Even
if there were reason to think history could repeat itself in this
unlikely fashion, it would scarcely be sound policy to encourage
deliberate copyright violations and additional litigation as a means
of obtaining approval for licensing provisions that could not
otherwise be negotiated lawfully…
Perspectives on Antitrust
“…Moreover, the “most favored nation” clause in the Proposed Settlement,
S.A. § 3.8(a), discourages potential competitors (including those
sponsored by rightsholders) from attempting to follow Google into digitalbook distribution because it could not obtain better terms than Google. This
de facto exclusivity (at least as to orphan works) appears to create a
dangerous probability that only Google would have the ability to market to
libraries and other institutions a comprehensive digital-book subscription.
The seller of an incomplete database – i.e., one that does not include the
millions of orphan works – cannot compete effectively with the seller of a
comprehensive product. Foreclosure of newcomers is precisely the kind of
competitive effect the Sherman Act is designed to address.”
Statement of Interest by the U.S. Dep’t. of Justice (DOJ) Regarding the
Proposed Settlement, Authors Guild, Inc. v. Google Inc., No. 1:05 CV 8136
(S.D.N.Y. Sept. 18, 2009), available at
http://thepublicindex.org/docs/letters/usa.pdf
Response: Amended Settlement
Agreement
• Inserted term relating to resellers
• Imposed limits on the powers and functions of
the Registry
• Greater powers given to the Unclaimed Works
Fiduciary
• Greater powers to individual rights holders
• Deleted former 3.8 (a) “Effect of Other
Agreements” (which was essentially a most
favoured nations clause)
Settlement Issues: Privacy
• There were concerns about Google being able to monitor
the reading habits of users
• A fight pioneered by the Electronic Frontiers Foundation
(EFF) (“Readers should be able to read and purchase
books on Google Book Search without worrying that the
government or a third party may be reading over their
shoulder”): http://www.eff.org/issues/privacy/googlebook-search-settlement
A perspective on privacy:
University of California Academic Council
“privacy”, alancleaver_2000, licensed under Creative
Commons Attribution 2.0 Generic licence,
http://www.flickr.com/photos/alancleaver/4105726930/
Perspectives on privacy
“Intellectual privacy and information privacy are
fundamental values in academic environments. Academic
freedom of inquiry is premised on the right to read and
interact with texts anonymously. Without assurances that
information on users’ reading habits will either not be
collected at all or will, if collected, be protected from
unwarranted use and disclosure, the likelihood of a chilling
effect on reading, reflection and analysis is high.”
Letter from the Academic Council, Univ. of Cal., to Judge Denny Chin, Authors
Guild, Inc. v. Google Inc., No. 1:05 CV 8136 (S.D.N.Y Aug. 14, 2009)
http://thepublicindex.org/docs/letters/ucfaculty.pdf
Response: Amended Settlement
Agreement
• Inserted 6.6(f): “No Personally Identifiable
Information. In no event will Google provide
personally identifiable information about end users
to the Registry other than as required by law or valid
legal process.”
Settlement Issues: Jurisdiction
• Commentators in Europe in particular were unhappy
about what the Project could mean for their cultures and
languages – books in the database were likely to be
overwhelmingly in English, and reflecting a US point-ofview on history etc.
• The Settlement Agreement affects Australian authors,
but the access and use terms of the Agreement are
limited to the US. What impact is there for Australian
users?
Response: Amended Settlement
Agreement
• 1.19 Definition of “Book” amended to restrict scope:
1.19 (c)(1) if a “United States work” as defined in 17 U.S.C. 101, was
registered with the United States Copyright Office, and
(2) if not a United States work, either (x) was registered with the
United States Copyright Office or (y) had a place of publication in
Canada, the United Kingdom or Australia, as evidenced by
information printed in or on a hard copy of the work
• 1.31 Definition of “Commercially Available” amended to
include “Canada, the United Kingdom or Australia” in the
regions to which a Rightsholder may be offering a Book for
sale into, in order for the Book to be deemed Commercially
Available (formally the definition only accounted for
purchasers within the United States).
Response: Amended Settlement
Agreement
• The settlement amount of US $45 million has
not changed, notwithstanding that the
settlement class is now smaller (settlement is
restricted to Books published in the US, UK,
Canada and Australia) – see 2.1(b).
Settlement Issues: Jurisdiction
• European governments are undertaking their
own digitisation projects
• Have also negotiated separate agreements with
Google – for example the city of Lyon’s library
(in France) has signed an agreement with Google
to scan as many as 500,000 books in 10 years:
http://edition.cnn.com/2010/WORLD/europe/
02/08/google.livres.france/index.html
Google Book Search and Australia
• Could the access benefits of the Google Book
Search Project be extended to Australia?
 Public domain works ok
 With the licence of publisher/author ok
 Snippet display (at 12 lines of text per book) = likely
insubstantial
 Preview Uses absent a licence?
Google Book Search and Australia
• Fair dealing is more restrictive than fair use
• In the US, fair use was arguable, and Google may
have been successful in court based on these
arguments
• In Australia, Google could not have even
attempted this Project without a licence
• What does this say about copyright law,
opportunity and innovation in Australia?
Amended settlement timeline
13 November 2009: Google, AAP and AG reach Amended
Settlement Agreement, subject to court approval
19 November 2009: Court gave preliminary approval to the
Amended Settlement Agreement
28 January 2010: opt-out deadline for authors who did not
opt-out of original settlement; opt-in deadline for authors
who opted-out of original settlement but now want back in
18 February 2010: Fairness
Hearing held
Broader Implications
• Benefit-sharing model
• Provides an argument for a “zone of
experimentation”, where the need for
permission will not chill innovation and
experimentation at the outset, but where
benefits can be shared later if the
experimentation proves profitable