Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

Almost five years ago, the Authors Guild launched a class action lawsuit against Google over what was then called the Google Library Project. This led to the controversial 2008 Google Book Settlement, which has been one of the major hot issues in copyright law and policy discussions ever since. The settlement has been a recurring theme here at IPilogue, and of course, tech blogs everywhere. (I’d particularly recommend Annalee Newitz’s “5 Ways The Google Book Settlement Will Change the Future of Reading” over at io9.com as an example of the sort of thinking spurred by the settlement proposal.) 

US District Judge Chin has yet to rule on the acceptability of the Google Book Settlement, so while we’re all waiting for that, book illustrators and visual artists have joined the fray by launching their own class-action suit against Google (a scan of the complaint is available from this link).

The suit can’t really be a huge surprise to Google. They’ve taken prophylactic measures, as Google Books already does not display illustrations and photographs from books. Still, the images are copied, even if they’re only for Google’s internal purposes (so far). As the complaint observes (at para. 50), even one digital copy is infringing. Another reason Google shouldn’t be surprised is that organizations representing visual artists attempted to get involved in the original Google Book Settlement negotiating process, only to be rebuffed. That sounds like a bit of an invitation to launch their own complaint.

The American Society of Media Photographers seems happy to oblige. They’re joined by the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, Professional Photographers of America, as well as a half dozen individuals. With a deal as far-reaching as the Google Book Settlement in the works for their author colleagues, it makes sense that visual artists would want their voices to be heard. Eugene Mopsik, Executive Director Of the ASMP, is quoted in their press release as saying, “Through this suit, we are fulfilling the missions of our organizations and standing up for the rights of photographers and other visual artists who have been excluded from the process up to now. We strongly believe that our members and those of other organizations, whose livelihoods are significantly and negatively impacted, deserve to have representation in this landmark issue.” The complaint itself opens up with a bit of a bang: “This is a civil action that arises under the laws of the United States and is designed to redress the most widespread, well-publicized, and uncompensated infringement of exclusive rights in images in the history of book and periodical publishing.” Yikes!

One difference between the authors’ and the artists’ claims that may prove to be significant is that the artists are also going after the Google Books Partner Program. This program allows publishers to voluntarily provide Google with access to their catalogue for Google to scan and include in Google Books. Visual artists, it would seem, aren’t represented in that process either.

The question, it seems to me, is what are the visual artists hoping to gain from this suit? At the start of the litigation between Google and the authors, I doubt very many foresaw that it would result in something like the current form of the Google Book Settlement (wasn’t it supposed to be a fair use case?). The ultimate outcome of this case could be just as unpredictable. If it resulted in some sort of settlement similar to the one with the authors (assuming, for the moment, that that is approved), it would result in a more robust Google Books service. Depending on your point of view, that’s either a very good or a very bad thing.  The fact that Google Books doesn’t display illustrations certainly limits its completeness and usefulness. Perhaps the parties will have learnt something after the various trials and tribulations of the settlement with the authors. Although this shouldn’t directly affect the original Google Books Settlement, it certainly muddies the waters even further for the Google Books project itself.

Posted in Copyright, IP, Literary Works