Google and publishers reach settlement on digitized books case

Publishers can now decide whether Google can digitize out-of-print books still protected by copyright, but does not settle the issue of individual author rights.

After seven years of litigation, Google and the American Association of Publishers (AAP) announced Thursday that they had reached a settlement in the Google Books scanning case. But the settlement leaves a key issue on the table and does little to resolve a higher-stakes suit against Google filed by individual authors.

The settlement with publishers allows publishers to decide whether Google can digitize their books or not. Publishers can “choose to make available or choose to remove their books and journals digitized by Google for its Library Project,” the AAP said in a statement.

Though this changes little in the way Google and publishers already partner – Google had already scanned some 20 million books for its Google Library Project – it does illustrate how far publishing has come in the Digital Age.

“Basically when the case was filed seven years ago, that was a long time ago, and the world has changed a lot,” AAP president Tom Allen told Publishers Weekly.

“Digital books were a new and daunting prospect when the publishers first sued Google seven years ago, but they have now become commonplace,” The New York Times reported in its announcement of the settlement.

“They had this lawsuit hanging around for years, and basically the publishers have all moved on,” James Grimmelmann, a professor at New York Law School who has been following the case, told The New York Times. “They are selling digitally now. That’s the future. This just memorializes the transition.” 

The case against Google was originally filed in 2005 after Google had made public its plans to create the world’s largest digital library and partnered with several major research libraries to digitize books and journals in their collections. Authors and publishers argued this constituted copyright infringement and filed suit against Google, seeking financial damages and a court order to block the copying. A deal was reached in 2008 but was rejected by federal Judge Denny Chin, who said it raised copyright and antitrust concerns.

Thursday’s deal, which involved five publishers including McGraw-Hill Companies, Pearson Education, the Penguin Group, John Wiley & Sons, and Simon & Schuster, was reached privately and is not subject to court approval.

It allows publishers to decide whether to allow Google to digitize their out-of-print books still under copyright protection. Publishers who opt to have their scanned works included in the Google database will receive a digital copy for their own broad use, including rights to sell them on their own websites or make them available in other search engines.

As for Google, it can allow users to read 20 percent of scanned books online before purchasing entire digitized books from the Google Play store. Revenues will be shared with publishers, as per settlement terms.

“We’re very pleased, because the settlement acknowledges the rights and interests of copyright holders and publishers, and whether they’re going to make their rights available,” said Mr. Allen in a press statement.

“What’s really exciting about today’s settlement is the fact that Google will be getting access to books that have long been out of print that are in copyright,” said Tom Turvey, director of strategic partnerships at Google. “It’s good for users who weren’t able to buy them before, and for publishers.”

But the settlement does little to address the crux of the debate in the Google Books case – whether Google is infringing copyright by digitizing books. Instead, it simply allows both Google and publishers to agree to disagree, resolving the current debate but leaving more conclusive rulings for another time – and another fight.

“After Judge Chin rejected the settlement … [we] basically worked out an arrangement that doesn’t resolve the legal issues,” Allen told Publishers Weekly. “We agree to disagree on those, but as a practical matter, it does resolve our differences with Google.”

That “other fight” just may be the one tied up in court now, the much bigger case remains between Google and the Authors Guild, which represents individual authors affected by Google’s digitization project. The Guild said Thursday the publishers' settlement did not resolve its complaints against Google and its book-scanning project.

“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Paul Aiken, executive director of the Authors Guild, said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”

This time, the suit may result in a more decisive ruling on copyright infringement and fair use.

Husna Haq is a Monitor correspondent.