Copyright Law Updates | New Settlements and Verdicts
February 19, 2009
Authors, Publishers, and Google Reach Landmark Settlement on Online Book Publishing
The Author's Guild, Inc., et al. v. Google Inc.
No. 05cv8136, U.S. District Court for the Southern District of New York , 10/28/2008
Internet search giant Google, Inc. has announced that on October 28, 2008, it reached a groundbreaking settlement agreement with The Authors Guild and the Association of American Publishers (AAP). The settlement would expand online access to millions of in-copyright books and other written materials in the U.S. from the collections of a number of major U.S. libraries participating in Google Book Search. As part of the settlement, Google will pay $125 million to settle two lawsuits over its book-scanning project, one a class-action lawsuit brought by book authors and the Authors Guild, and the other brought by five large publishers as representatives of the AAP’s membership. The agreement, reached after two years of negotiations, will make millions of books searchable and printable online according to Google's press statement. The settlement is subject to approval by the U.S. District Court for the Southern District of New York.
The instant lawsuit and the related case of McGraw-Hill Cos. v Google Inc., No. 05cv8881 were filed in response to Google’s highly publicized Google Library Project. In 2004, Google announced that it had entered into agreements with several university and other libraries to digitize books and other writings contained in those libraries. Google has already digitized over seven million books, including books that are in copyright, and has created a searchable books database that shows users “snippets,” meaning several lines of text, from the books. See Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Settlement Approval.
On September 20, 2005, several published authors and the nation’s largest organization of book authors, The Authors Guild, filed a class action lawsuit against Google alleging copyright infringement by Google and seeking damages and injunctive relief. On October 19, 2005, five publishers filed individual lawsuits alleging copyright infringement and seeking injunctive relief against Google. On June 19, 2006, the Authors Guild plaintiffs filed an amended complaint. Id.
Google answered the initial complaints in November 2005 and the authors’ amended complaint in July 2006. By agreement of the parties and with the approval of the district court, coordinated discovery began in both cases. The author and publisher plaintiffs reviewed millions of pages of documents related to Google’s activities; the author plaintiffs also reviewed documents produced by the publisher plaintiffs that were relevant to the authors’ and publishers’ respective copyright and contractual interests in the books digitized by Google. Id.
Although the parties were able to avoid bringing most of their discovery disputes to the district court, discovery was protracted and pockmarked with disagreements created in part by the extraordinary burden all sides shared by the enormous costs of electronic discovery. In the fall of 2006, the parties began settlement negotiations, which, given the innovative nature of the Google Library Project and the competing interests of the parties involved (authors, publishers, Google, and libraries), proved to be uniquely complex and difficult. Id.
After more than two years of often full-time negotiations, the parties, as well as several participating libraries, reached a proposed settlement of this class action, memorialized in the Settlement Agreement submitted to the district court. Id.
As part of the settlement, the McGraw-Hill action will be dismissed with prejudice if and when this Settlement is finally approved and any appeals from the district court’s final approval order have been exhausted. Id.
In their joint statement, the parties stated that if approved by the district court, the agreement would provide for: (i) online search and preview of out-of- print books, which would generate greater exposure for millions of in-copyright works, including hard-to-find out-of-print books; (ii) additional ways for users to purchase copyrighted books, including the ability to purchase books online; (iii) institutional subscriptions to millions of books online, a means for U.S. colleges, universities and other organizations to obtain subscriptions for online access to collections from some of the world’s most renowned libraries; (iv) free, full-text, online viewing of millions of out-of-print books at designated computers in U.S. public and university libraries; and (v) compensation to authors and publishers and control over access to their works by distributing payments earned from online access provided by Google and, prospectively, from similar programs that may be established by other providers, through a newly created independent, not-for-profit Book Rights Registry that will also locate rights holders, collect and maintain accurate rights holder information, and provide a way for rights holders to request inclusion in or exclusion from the project. Id.
Under the agreement, Google will make payments totaling $125 million. The money will be used to establish the Book Rights Registry, to resolve existing claims by authors and publishers and to cover legal fees.
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