In 2002, Google began digitizing approximately seven million books at its own expense through partnerships with libraries, publishers, and authors. The database Google created contains digital copies of works both in the public domain and in copyright. Many of the books that it digitized are in-copyright out-of-print and orphan works.

Each digital book in the Google Books database is automatically searched whenever one uses Google’s search engine. Relevant hits lead directly to the page or pages of the book containing the search terms. Currently, Google Books can be freely accessed by anyone from anywhere in the world. But while digitized copies of books in the public domain may be read, downloaded, and printed in their entirety for free, only limited access (up to 20% of a work) is permitted for works which are still in copyright. To access an in-copyright work in its entirety at the present requires one to either purchase the book or borrow it from a library. Google provides users with links to facilitate both of these options.

Due to fundamental differences between U.S. and European copyright laws, Google opted to digitize in-copyright out-of-print and orphan works only from its library partners in the United States. It believed at the time, and maintains to this day, that it was allowed to digitized these categories of works under the United States’ broad fair use exception to copyright law. Without an analogous exception for it to rely upon under European copyright law, Google chose from the start to restrict its European digitization projects solely to works in the public domain.

Participating libraries not only retain the original copies of the works, which they made available to Google, they also received their own digital copy of each work and the right to rescan the each work in the future, if they choose. The digital copies that Google retained are hosted on its Google Books website.

In 2005, as a result of these activities, Google was sued by the Author’s Guild and the Association of American Publishers for illicit digitization of copyrighted works.

The Settlement

In October of 2008, Google, the Author’s Guild, and the Association of American Publishers negotiated an out-of-court settlement; however, for the settlement to take affect it must first be approved and finalized by the court. Because this is a class action law suit, which will apply to rights holders who do not expressly notify the court that they wish to be excluded from the settlement, and because the settlement would create an entirely new way of managing copyrights in the United States through a proposed Books Rights Registry, the court has allowed more time for review of the settlement, as well as more input from interested non-parties, than it would normally. The settlement has not been finalized to date.

In September 2009, the United States Department of Justice expressed reservations about the legality of the original settlement as it relates to U.S. copyright and antitrust laws, and for not providing adequate time and notice to rights holders to opt out of the settlement. The Justice Department urged the court to disallow the original settlement. In response, Google and its adversaries revised their settlement proposal in November 2009, narrowing its scope.

The revised settlement would have no effect on access to digitized books which have fallen into the public domain. All around the world, access to out-of-copyright books will remain as it is today—anyone with access to Google Books will be able to search, read, download, and print the full text of any out-of-copyright work in the database, regardless of whether the work is still in print, and regardless of the user’s geographic location.

For books that are still in copyright, the revised settlement would only apply to works registered in the U.S., or published in Canada, the United Kingdom, or Australia. Canada, the U.K., and Australia were included because they share similar legal and publishing cultures with the United States, and because their rights holders have voluntarily chosen to join the case and submit to the jurisdiction of the U.S. court. Works from any other country are excluded from the settlement (and will not be available for free or by subscription), unless they have been registered with the U.S. copyright office. The settlement would still only apply within the United States itself.

If the court approves the settlement, access to in-copyright materials on Google Books from within the United States would remain similar to the limited previews available now. However, individuals would also be able to purchase online access to the full text instantly. Additionally, Google would provide public libraries and institutions of higher education in the United States with free public access terminals, which would permit reading and printing, but not copying and downloading, of in-copyright books that are not commercially available. The revised settlement would increase the number of public access terminals that would be made available to libraries over what was offered in the original settlement (in the original settlement only one terminal would have been available per library). Access to the in-copyright digital books database would also be available through paid subscriptions to the Google Books database.

To address antitrust concerns, the revised proposal would allow any bookseller to sell online access to the non-commercially books covered by the settlement. Additionally, it would allow rights holders the option of making their works freely available, or available under Creative Commons licenses, as well as allowing them to remove any default restrictions on viewing, printing, and downloading their works with which they disagree.

The revised settlement would allow the proposed Books Rights Registry to issue digitization licenses to others independently of its license with Google, removing the "most favored nation" status Google held under the terms of the original settlement. Finally, the revised settlement would prohibit the Books Rights Registry from using unclaimed revenues to cover its operating costs or redistributing these to other rights holders. In the first five years, up to 25% of unclaimed revenues would be able to be used to try to locate rights holders; after ten years, all unclaimed revenues would be donated to charities promoting literacy.

What this means for IFLA and the International Library Community

IFLA took advantage of the opportunity to appear as a friend of the court on behalf of the international library community. We submitted an amicus brief detailing our concerns with the original settlement proposal last summer. Many of the concerns we voiced then remain under the terms of the new settlement proposal.

IFLA still remains concerned about the potential for monopolistic abuses by Google due to the current lack of competition in the digitization and distribution of digital books. Additionally, if the settlement is approved, the digital divide would expand, creating an imbalance in digital library resources between those in the United States and everyone else. Moreover, the largest, most comprehensive digital book repository would still remain under the control of a private, for-profit corporation, where preservation concerns are not the priority that they are for the world’s libraries, endangering the repository’s long-term survival. Finally, the revised settlement still does not address the privacy concerns we raised in our amicus brief. Libraries are dedicated to protecting our patrons’ privacy; but accessing information through Google Books could potentially put their privacy at risk.

Looking Ahead

At the present time, the situation remains too uncertain to justify official comment by IFLA.

28 January 2010 is the deadline for rights holders to opt out of the class. This means that rights holders who have not notified the court of their desire to be excluded from the terms of the settlement by this date will forfeit the option to do so in the future, and will be automatically included in its terms. It is important to remember that this is not unique to this settlement, nor something being forced on rights holders by Google—it is a standard function of class action law suits within the United States.

4 February 2010 is the deadline for the Department of Justice to respond to the changes made to the settlement. If the Department of Justice does not object to the revised terms of the settlement, it is highly probable that the court would approve the settlement. In its desire to see the settlement succeed, Google has taken the unusual step of expressly waiving immunity to any future prosecutions which may arise from implementation of the settlement (one of the chief concerns expressed by legal analysts in the United States).

Finally, the fairness hearing will be held on 18 February 2010. The fairness hearing allows class members (in this case the rights holders) to voice any additional objections to any of the terms of the settlement. After the fairness hearing, we will have a clearer picture of the future of Google Books. We hope to be able to provide an update to IFLA members by April 2010.

Further Reading