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Google Books heads to trial

THE DEADLINE set by Judge Denny Chin for a revised settlement agreement in the Google Books dispute passed on 15 September, with no new draft. Chin did not set a trial date at the hearing that day: he did set a timetable for steps toward trial in the case, which stems from Google signing agreements with libraries to scan their books and post the scans, or parts of them, online.

The next deadline is for the plaintiffs, the Authors Guild, individual book authors and several publishers, to deposit their arguments for this being a "class action" by 11 December. A "class action" is a mechanism in US law for a case to be brought on behalf of an entire "class" of plaintiff, without all those affected needing to individually sign up or even to be idenfified when the case starts.

And the sides have until 30 March 2012 to complete "discovery" - the process of demanding and supplying documents relevant to the case and the activity that caused it. That could be interesting.

The Authors Guild says Google's making books available online should lead to compensation to authors. Google maintains that this is an example of "fair use" - the ill-defined US legal doctrine over when a copyright work, such as a book, can be used without the owner's permisison.

Google was nevertheless prepared to fund the proposed settlement to the tune of US$125 million, offering up to US$60 to a sole author of a book registered with the US Register of Copyrights. In March Judge Chin ruled out that settlement proposal, not least on the grounds that it would have covered all authors who did not actively opt out, and would have create a monopoly in trade in "orphan" books - those whose authors cannot be contacted.

Negotiations toward a new settlement agreement continue in parallel. According to New York Law School associate professor James Grimmelmann, the publishers' talks with Google have made more progress than the authors'.

And another lawsuit...

Meanwhile, on September 12 the US Authors Guild, the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ), and eight individual authors, including Fay Weldon, launched a new lawsuit against the HathiTrust and four participating universty libraries.

Hathi has launched an interface to nearly 10 million books scanned by Google. It plans to start making what it regards as "orphan" books avilable online, starting on 13 October. Hathi has posted online a list of "candidate orphans", which at the time we checked appeared to be a test with 160 entries.

When the list was first posted, Authors Guild staff set about identifying the authors of books on the list. In less than three minutes they were on the phone to the wife of the literary agent of one, Jack Salamanca. His books were no longer on the list on 16 September, and a handful of others appear to have been removed.

The lawsuit asks the court to stop the publication online of allegedly "orphan" books - by implication until the US Congress - or Judge Chin - has decided how or whether that might be legitimised in law. The documents filed with the court note that Hathi and the universities have "taken the law into their own hands".

It is clear to the Freelance that the motivation behind the Hathi action is to set a precedent according to the libraries' - and Google's - taste, with the expectation that their illegal action will be legitimated by changing US law afterward.

The Authors Guild is already being portrayed by anti-copyright commentators as trying to lock up books; this rather ignores the effort it has put, and continues to put, into trying to negotiate a framwork in which orphan books can be used with minimum damage to known authors. That's not unproblematic - especially when it comes to works such as illustrations that are incorporated into books. The Hathi project and the lawsuit are all about tilting and re-levelling the playing field on which those negotiations take place.

Very likely, Google and those libraries that have allied with it have shot themselves in the foot here.

Last modified: 16 Sep 2011 - © 2011 contributors
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