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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline


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October 23, 2012

Google Wins Again In Ongoing Google Books Litigation

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Posted by Alan Wexelblat

This suit has been going on forEVER (at least seven years) and I'm at least technically party to a possible settlement as an author so I haven't had much to say about it, but this month there have been two major developments that are worth tracking. Plus I'm hopeful my new librarian readers are paying attention because this one matters to you guys, too.

To review: Google announced in 2004 a major initiative to scan a lot of books. There was a considerable debate about which ones it could scan - things out of copyright are obviously fair game but that's a vanishingly small sample of the literature. Most controversial were plans to scan so-called "orphan" works: out-of-print items still under copyright but whose copyright owners could not be located. Also controversial were Google's plans to be the exclusive repository of the scanned material, in effect building a digital wall around what might be thought of as public-domain material.

Major organizations objected, publishers objected, attorneys general had significant questions, and as usual it all dragged out in court. There have been some attempts to engineer a comprehensive settlement, none of which have held on. The most recent one was last year, and that got thrown out as vastly unfair and likely to give Google a ridiculous monopoly and would have instituted whole new powers for Google, such as the ability to sell copies of these scanned books.

Fast forward to this month, when Google managed to split its enemies, or close one front in the war, depending on how you look at it. They settled with the big five publishing houses. Since this part of the suit isn't public - it's corporations agreeing on things - the precise terms aren't required to be shown publicly. Most notably as a private agreement it lets Google and the publishers get around the requirement for a judge's approval and avoid getting torpedoed again for selling things they don't have rights to sell... oh, wait, was that my out-loud voice?

Some details have appeared in news stories, and the Association of American Publishers put out a press release: Google agrees that publishers may require that their books and journals be removed from the archive. Publishers who do leave their materials in the archive get a digital copy for their own use (avoiding the costs of digitization themselves) and can use that copy for whatever they want, including presumably selling it. Likewise, Google gets rights to sell the material in its "Play" store, giving publishers some of that revenue, and is allowed to make 20% of the digital edition readable on-line.

Not mentioned is what efforts (if any) will be made to determine that either Google or the publisher has digital sale rights to these publications. Recent decades' contracts have usually assigned digital edition rights to publishers, but that leaves a great deal of material from the last century that is both under copyright and for which no digital reproduction rights were ever negotiated. Just because something is out of print doesn't mean it's out of copyright, a fact that both Google and the publishers seem all too happy to gloss over.

The second win for Google this month came against its remaining opponent, the Author's Guild, which has been pushing a class-action case on behalf of author-members as well as other authors such as those who wrote those out-of-print-but-not-out-of-copyright books. In a ruling earlier this month, Google's practice of scanning these out-of-print books for inclusion in its search archive was found to be a form of fair use. In specific, libraries that had given Google copies of books to be scanned were held not to be in violation of the copyrights on those books.

Interestingly, the decision by Judge Harold Baer is based on a full fair-use analysis. Baer reasoned that inclusion of the works in a searchable archive was sufficiently "transformative" and that inclusion of the resulting digital copies in the Hathitrust Digital Library did not impair the market for digital editions of the books produced by the publishers. (I'll have more to say about Hathitrust in the next blog entry.)

As PW noted, it's now becoming established legal doctrine that search-engine uses of copyrighted material are non-infringing uses, a potentially important legal landmark. Still, Google continues to push the boundaries of what search engines can do with their indexed and archived materials, so I don't expect all the lawsuits to dry up overnight.

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