Suing Google: Don’t Judge an E-book by its Publisher

The W&M chapter of ACS recently co-sponsored an event with the Student Intellectual Property Society with attorney Joanne Zack, a founder of Boni & Zack LLC, who was plaintiff’s counsel in the recently settled Authors Guild v. Google (PDF). The case involved a lawsuit against Google Books for making a searchable database of books which the Authors Guild claimed was massive copyright infringement.

Zack started out the talk with a very succinct overview of copyright law in the U.S., which was sorely needed for many of the copyright greenhorns (like myself) present in the audience. To summarize, Art. I §8 contains the copyright clause which empowers congress to “secur[e] for limited times to authors and inventors the exclusive right to their respective writings and discoveries” With this grant of authority, congress has passed Title 17 of the U.S. Code, which deals exclusively with copyright, and more importantly in the Google Books case, fair use doctrine, which is covered in 17 U.S.C. §107. §107 makes clear that uses for “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” are not an infringement of copyright depending on the outcome of a balancing test using the so-called “fair use factors”:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

While many budding copyright lawyers in the audience wanted to speculate as to what the Google books use would look like under the test, Zack would only say that she felt that under the 2nd circuits precedent in Infinity Broadcast Corp. v. Kirkwood (noting that a ‘total absence of transformativeness’ made a finding of infringement likely on remand) Google probably stood a less than 50% chance of winning. That along with Google’s reported investment of over $1billion in the project is what Zack speculates led to the $125 million settlement by Google.

Zack also spoke briefly about the difficulties of representing a class as large as the authors guild with so many diverse interests and, unsurprisingly, there has been a lot of talk on the interwebs about whether the settlement was the best option for a lot of the authors. However, just to clear some of that up, Zack was very clear (as is the settlement agreement) that authors who do not wish to have their work posted in Google can have it removed, only if they desire the potential added revenue of the use by Google do they have to keep their books up online.

Overall, the settlement has both benefits and drawbacks for both sides (it wouldn’t really be a settlement if both parties didn’t leave moderately unhappy.) The author’s get the option of choosing whether or not to display snippets of their works in the search engine, money derived from any Google advertising as well as the potential to derive new revenue for long oop books, and the creation of a registry that will administer the disbursement of these funds. Google gets to keep distributing these books, and, as a result of the settlement, many copyright owners have come forward and given Google full rights to their works.

The bummer in the settlement is that there has been no definitive ruling on the fair use doctrine and law students across and fair users are stuck wallowing the mire of a often conflicting interpretations of the 4 part fair use test.

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Published in: on April 6, 2009 at 4:53 pm Comments Off on Suing Google: Don’t Judge an E-book by its Publisher

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