The Author`s Guild vs. Google Books case
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Deconstructing Google The Author’s Guild vs. Google Books case Marta Rodríguez Aguado 22 May 2012 United States District Court Southern district of New York VS. Deconstructing Google Facts Google Book Library Project 2002: Google Books Library project. Scan and make searchable the collection of several research libraries Bibliographic information and snippets of the text from a book are viewable If the book is out of copyright and in the public domain book fully avalaible to read or download 2004: Google has scanned 12 million books Did not obtain copyright permission to scan all the books Deconstructing Google Facts Agreements 2005: Class action 2008: Initial Settlement Agreement. Google paid $125 million to rightsholders, publishers, lawyers, registry… to be released from liability for book digitization. Preliminary approved. Objections. 2009: Amended Settlement Agreemet (ASA) March 2011: Denied WHY? FAIR ADEQUATE REASONABLE Deconstructing Google Deconstructing Google Facts Benefits of Google’s Project SOCIETY: Books will become more accessible: Libraries, schools, researchers and disadvantaged populations will gain access to more books Conversion to Braille and audio formats AUTHORS AND PUBLISHERS: New audiences will be generated New sources of income Give new life to older books Deconstructing Google Facts The ASA Google authorized to: Continue to digitalize Books and Inserts Sell subscriptions to an electronic Book database Sell online access to individual Books Sell advertising on pages from Books Other prescribed uses Non exclusive Deconstructing Google ISSUES Adequacy of Notice Adequacy of Class Representation Scope of Relief under Rule 23 Copyright Concerns Antitrust Concerns Privacy Concerns International Law Concerns Deconstructing Google Adequacy of Notice Did the Class (all persons that owned a US Copyright interest ir one or more Books implicated by a usa unathorized by the ASA) receive adequate notice? Plaintiffs established a website to provide information about the case, the initial settlement and the ASA (www.googlebooksettlement.com) Enormous publicity Adequacy of Class Representation Deconstructing Google Considers whether… Plaintiff’s interests are antagonistic to other members of the class Plaintiff’s attorneys are qualified, experienced and able to conduct the litigation Three groups who may not be adquately represented: 1)Acadamic authors, commercial authors, publishers 2)Foreign rightsholders 3)Rightsholder who do not come forward to register (orphan copyright owners) Scope of Relief under Rule 23 Rule 23 Federal Rules of Civil Procedures – Class Actions The ASA is divided in 2 parts: Settlement to release Google from liability for past copyright infringement Settlement to release Google from liability for future copyright infringement Exceeds what the Court may permit Deconstructing Google Deconstructing Google Settlement to release Google from liability for future copyright infringement Matter for Congress: the establishement of a mechanism for exploiting unclaimed books is a matter more suited for Congress than Court Who should be entrusted with guardianship over orphan books? Scope of the Pleadings: Plaintiffs: Google’s scanning of books and show of snippers for online searching is a copyright infringement. Google: fair use Settlement to release Google from liability for future copyright infringement Deconstructi ng Google The ASA would: 1) Grant Google the right to sell full access to copyrighted works that it otherwise would have not right to exploit. 2) Grant Google control over commercialization of million of books (+ orphan books and unclaimed works)without first obtaining copyright permission Deconstructing Google Copyright Concerns Are the ASA’s opt out provisions granting Google the ability of expropiating the rights of copyright owners who have not agreed to transfer those rights? 17 U. S.C § 201 Involuntary Transfer. — When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11 Deconstructing Google Copyright Concerns Are the ASA’s opt out provisions granting Google the ability of expropiating the rights of copyright owners who have not agreed to transfer those rights? By in terms Section 201(e) is not limited to acts by governmental bodies. Deconstructing Google Copyright concerns Opting-out clause A copyright owner’s right to exclude other using his property is fundamental. Counsel for Amazon: “The law of US is a copyright owner may sit back, do nothing and enjoy his property rights intrammeled by others exploiting his works without permission” Under ASA, if copyright owner do nothing to defend their rights, they lose them. Glorioso “Copyright owners who are not aware that the ASA affects the interest unknowngly leave Google to decide how their books are used” Deconstructing Google Copyright concerns Can the authors opt-out? 1)Authors of unclaimed works 2)Incongruous with the purpose of copyrights 3)Legal Uncertainty Antitrust Concerns Deconstructing Google Deconstructing Google Antitrust Concerns Does the ASA give Google a monopoly of unclaimed works? The ASA would give Google control over the search market the ASA would permit third parties to show snippets from books scanned by Google, but only if they “have entered into agreements with Google”. Third parties would be able to index and search scanned books if: - Non commercial entities - Google written consent Google denies the competitors the ability to search orphan books Privacy Concerns Deconstructing Google Privacy Concerns Deconstructing Google PRIVACY AUTHORS AND PUBLISHERS Does ASA gives an adequate protections for users of Google Book Search ? - Ability to collect unlimited data about the activities of users of its Book Search - The identity of books a particular user reads - How long the reader spends on each book - What particular pages were read Deconstructing Google International Law Concerns Original Settlement included any book subject to a US copyright interest as of the Notice Commencement Date. Definition: All books published after 1989 in any country signatory to Berne Convention. Principle of reciprocity: foreign authors may be given the same rights and privileges for their works as domestic authors. 1989 US member of Berne Convention. Deconstructing Google International Law Concerns The ASA narrowed the definition “any non-US work is covered only if the copyright was affirmavely registered in Washington DC” or if “the book was published in Canada, UK, Australia on or before January 5, 2009”. Books registered in US before 1989? No decision about eventual violation of International Law Difficult for some foreign authors to determine whether they are covered by ASA (CEDRO) Congress Deconstructing Google Conclusions Rejection of the Settlement Move from an opt-out system to an opt-in system Opt in system: would not include unclaimed books Significant number of members of the Class opposed it strongly Lack of arguments Fair use Deconstructing Google THANK YOU! Questions?
