The Association of American Publishers (AAP) and publisher plaintiffs McGraw-Hill, Pearson Education, Penguin, John Wiley & Sons, and Simon & Schuster, settled their long-running litigation with Google today. The lawsuit, over Google’s scanning of library books, was first filed in 2005. As a result of the settlement, publishers can choose to make their books available for search via Google Books or purchase via Google Play, or to remove them.
Those publishers that don’t remove the books can also choose to be given a digital copy for their own use. Presumably the plaintiffs are getting more than a book scan out of the deal, but we don’t know what: all other terms of the agreement are confidential.
If a publisher opts out, Tom Turvey, Google’s director of strategic partnerships, told LJ, “There’s a mechanism in place” to exchange lists of books that must be removed from those already scanned—more than 20 million, as of March. Though the pace of scanning has slowed, Google does plan to continue the library project, Turvey said. When it comes to books that have not yet been scanned, he said, “for in copyright books, we’ll focus the scanning on books that are authorized.”
Not all publishers are opting out, however. Turvey told LJ that Google has already signed some publishers to agreements that would allow books to be displayed (in Google Books) and sold (by Google Play) based on library scans. However neither Turvey nor Tom Allen, president and CEO of AAP, would confirm the stance of any of the publisher plaintiffs. Said Allen, “Most of our larger publishers I believe have ongoing retail relationships with Google, but I don’t know status of those conversations.”
This is the second try at ending the suit. In 2008, a settlement was proposed which would have ended this case, as well as the case brought by the Authors Guild, also first filed in 2005. However that settlement was rejected by the judge in 2010. Because the AAP’s case against Google isn’t a class action, this settlement isn’t subject to court approval.
This settlement also does not affect the Authors Guild case (which is currently stayed pending Google’s appeal of its class action status). Paul Aiken, executive director of the Authors Guild, told LJ, “The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google. 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.”
The settlement does not address the question of orphan works, which was a major sticking point for Judge Chin in the previous settlement attempt.
James Grimmelmann, professor of law at New York Law School, has written extensively on the first, failed Google Books settlement. He told LJ, “It’s hard to see this having a significant impact on libraries. It makes licensing of backlist titles for Google Books incrementally easier, but I don’t see this as changing what digital book options are available to libraries or their patrons. The case removes a bit of legal uncertainty hanging over Google and publishing, but that’s all.”
Another bit of legal underbrush was cleared away earlier this year, when Google settled a similar suit by French authors. —Meredith Schwartz, LJ
From Gary Price, LJ infoDOCKET editor:
As the following update notes:
This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.
Just off the wire:
The Association of American Publishers (AAP) and Google today announced a settlement agreement that will provide access to publishers’ in-copyright books and journals digitized by Google for its Google Library Project. The dismissal of the lawsuit will end seven years of litigation.
The agreement settles a copyright infringement lawsuit filed against Google on October 19, 2005 by five AAP member publishers. As the settlement is between the parties to the litigation, the court is not required to approve its terms.
The settlement acknowledges the rights and interests of copyright-holders. U.S. publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.
Apart from the settlement, U.S. publishers can continue to make individual agreements with Google for use of their other digitally-scanned works.
“We are pleased that this settlement addresses the issues that led to the litigation,” said Tom Allen, President and CEO, AAP. “It shows that digital services can provide innovative means to discover content while still respecting the rights of copyright-holders.”
“Google is a company that puts innovation front and center with all that it does,” said David Drummond, Senior Vice President, Corporate Development and Chief Legal Officer, Google. “By putting this litigation with the publishers behind us, we can stay focused on our core mission and work to increase the number of books available to educate, excite and entertain our users via Google Play.”
Google Books allows users to browse up to 20% of books and then purchase digital versions through Google Play. Under the agreement, books scanned by Google in the Library Project can now be included by publishers.
Further terms of the agreement are confidential.
[Our Emphasis] This settlement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.
The publisher plaintiffs are The McGraw-Hill Companies, Inc.; Pearson Education, Inc. and Penguin Group (USA) Inc., both part of Pearson; John Wiley & Sons, Inc.; and Simon & Schuster, Inc. part of CBS Corporation.
UPDATE via Publisher’s Lunch (Sub. Only):
While publishers get to exercise permission and receive payment, the settlement does not address in any way their long-running concerns over what libraries–and state university libraries in particular–do with the scans of books in their collections. [AAP President and CEO Tom] Allen says ‘the settlement does not deal with that issue at all,” though he notes that “a lot has changed in the seven years since this litigation was first raised.’
The suit, which seeks a declaration by the court that Google commits infringement when it scans entire books covered by copyright and a court order preventing it from doing so without permission of the copyright owner, was filed on behalf of five major publisher members of AAP: The McGraw-Hill Companies, Pearson Education, Penguin Group (USA), Simon & Schuster and John Wiley & Sons.
The suit, which is being coordinated and funded by AAP, has the strong backing of the publishing industry and was filed following an overwhelming vote of support by the 20-member AAP Board which is elected by, and represents, the Association’s more than 300 member publishing houses.
See Also: Copy of Complaint Filed by Publishers on October 19, 2005