In June, Google, Inc. received some welcome news in France after the lawsuits instigated by the French Publishers Association (Syndicat national de l’édition) and the French Author’s Association (Société des gens de lettres) were withdrawn following a successfully agreed upon “framework” settlement. Google wrote on its European Public Policy blog that the new arrangement gives authors and publishers continued control over their works for commercial purposes while the internet giant is given authority to scan and sell out-of-print copyrighted works in e-book format. Publishers and authors retain the right to decide which specific titles it will allow Google to digitize and offer to the public, while also receiving a substantial portion of revenues from any sales made. With this settlement framework taking shape, the publishing world’s eyes are now keenly set on the development of Google’s legal troubles in the United States, namely the class action suit Authors Guild et al. v. Google, Inc. currently set for trial this coming October.
Since the introduction of Google Books in 2004 (previously known as Google Book Search and Google Print), Google has seen the development of its online index and search tool marred by numerous lawsuits at home and abroad alleging copyright infringement. Publishers, authors, image creators and the like took issue with their unauthorized digitization of copyrighted works. In the United States, Google’s main contention throughout this legal saga has been that the snippets of pages that were digitized from books were covered under fair use laws.
Although it seemed as if an agreement between U.S. publishers and Google was close to approval from both sides in 2009, commentators were critical of the wide-reaching and all-too-favourable terms for Google. Even the Department of Justice recommended against approving the settlement at a fairness hearing in 2010, citing the fact that the terms may violate anti-trust laws in the U.S. and also required the court to exercise powers that it did not have to instigate copyright reform beyond the scope of the case at hand. Not surprisingly, New York Southern District Judge Denny Chin ruled that the settlement agreement was not fair because it “goes too far” in giving Google the upper hand. Interestingly, Judge Chin noted that many of the objections cited could be pacified if the terms reflected an “opt-in” framework rather than the “opt-out” process proposed. Writers and other content creators were especially critical of the opt-out model, wherein Google had sweeping rights to use any orphan works indefinitely until the rights-holder comes forward and objects to such unauthorized use.
In contrast, the settlement that has come to fruition in France reflects such an opt-in framework, wherein Google must first obtain the permissions of publishing houses and their respective authors prior to digitizing the French works. To date, Google has already signed digitization agreements with two major French publishers, Hachette Livre and Le Seuil-La Martinière. Following this settlement, it is likely that Google will set its sights on convincing more French publishers and content creators to join. However, it is reported that publishing houses that ally with Google in this deal must agree that they will not sell their books through any other competing e-content distributor, which could represent a major blow for Amazon, who recently introduced its French-language Kindle reader and accompanying online bookstore in France. What will likely result in France is a race between Google, Amazon, Apple and other e-book retailers to sign any and all publishers as quickly as possible.
The agreement in France may nonetheless have little effect on the situation in the States. On May 31, Judge Chin handed down a judgment rejecting Google’s motion to dismiss the claims brought forward while also granting the three plaintiffs involved class certification status. Google has since filed a petition to appeal the decision with the Second Circuit, with summary judgments to be filed by July 27 and trial scheduled to begin on October 9. It seems likely that the case will proceed to trial for a determination of whether Google has infringed copyrighted works and owe statutory damages. The debate will no doubt be centered upon what “fair use” in this context can mean and whether Google’s use of the copyrighted works can fall under the fair use defense.
Publishers Weekly has commented that remarks made by the Authors Guild’s Executive Director seem to suggest another invitation for Google to resume negotiations for settlement. For the publishing industry as a whole, a key point of contention in these negotiations that must be resolved is a determination of how to ensure that authors of all published works, including those of an academic nature, can be taken into account through this arrangement. UC Berkeley Law’s Pamela Samuelson suggests that scholars like herself are quite happy to provide their academic works in an open access forum, and their goals differ quite a bit from the more profit-oriented Authors Guild. As Samuelson contends, a class action lawsuit such as this may not be the most appropriate mechanism with which to spur copyright reform to develop legal open access information schemes that cater to all. The results of this case, whether determined in or out of court, may indeed be a step in the right direction for the larger discussion of how best to balance protection of creators’ rights with public access to information and scholarship across all genres.
Fan Hannah Lan is a JD Candidate at Osgoode Hall Law School.