Publishers Settle Long-Running Lawsuit Over Google's Book-Scanning Project

October 04, 2012

After a seven-year legal battle, American publishers and Google have come to terms over the company's ambitious book-digitizing project. A settlement of the publishers' copyright-infringement lawsuit, announced on Thursday by the Association of American Publishers and Google, "will provide access to publishers' in-copyright books and journals digitized by Google for its Google Library Project," according to the groups' statement, and "acknowledges the rights and interests of copyright-holders."

Litigation over the book project continues, however, between a group of authors and Google.

Under the settlement, American publishers can now opt to remove their copyrighted books and journals from Google's library project or choose to make them available for use and sale. Beyond that, the statement offered few details, not revealing what commercial terms Google and the publishers have reached.

"It's now clear that we can choose to make our works available or remove them from the project," Tom Allen, president of the publishers' association, said in an interview. "We think this clarifies a lot." Under the deal, publishers that do not remove their copyrighted material from the project can get a digital copy to use.

Tom Turvey, Google's director of strategic partnerships, said the agreement would expand the market for e-books. A publisher with a copyrighted work willl be able "to come forward and put that book into both display and retail uses within our program," Mr. Turvey said. "We will have agreements with publishers that will authorize the display and the retail uses," he said. That means copyrighted material could still be made available as snippets through Google's book-search program or as full-text versions through Google Play.

Both Mr. Turvey and Mr. Allen emphasized the pragmatic nature of the deal. "The e-book world has changed, and it made more sense to reach an accommodation," Mr. Allen said, noting that the parties had "agreed to disagree" on some points, including fair use. Mr. Turvey said that Google had many valuable relationships with publishers and wanted to take advantage of the opportunity to settle.

Authors' Lawsuit Continues

Because the deal is a private agreement between the parties, Denny Chin, the federal judge overseeing the case, does not need to give it formal approval for it to take effect. Judge Chin rejected a proposed settlement between Google and both publishers and authors in 2011, saying it overreached. The author plaintiffs, led by the Authors Guild, have carried on the legal fight while the publishers focused on reaching terms with Google.

The settlement announced on Thursday does not affect the authors' case. "The publishers' private settlement, whatever its terms, does not resolve the authors' copyright-infringement claims against Google," Paul Aiken, the guild's executive director, said in a written 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."

Five publishers—McGraw-Hill, Pearson Education, the Penguin Group, John Wiley & Sons, and Simon & Schuster—brought the original lawsuit against Google in 2005. Other American publishers stand to benefit from the agreement as well, Mr. Allen said, as they "will be able to take advantage of these terms." Mr. Turvey said that Google has already begun signing agreements with publishers.

'Will Change Almost Nothing'

At least one close observer of the case was underwhelmed by the deal. "This is one of the least-dramatic settlements I've ever seen," James Grimmelmann, a professor of law at New York Law School, said by e-mail. "Google already offers similar terms to publishers through its partner program; this will change almost nothing on the ground."

Mr. Grimmelmann added, "The publishers clearly decided years ago that they can work with Google on a business level; the settlement just formalizes that informal rapprochement."

First reactions from Google's library partners were cautiously favorable. "To the extent that Google will get the books from libraries for publisher scanning, it means libraries will have more digitized books for lawful uses (e.g., supporting users with print disabilities) and for preservation," said John Wilkin, executive director of the HathiTrust digital repository, which is housed at the University of Michigan at Ann Arbor. "That's a very good thing and recognizes the intertwined interests of the various parties," Mr. Wilkin said in an e-mail to The Chronicle.

Google's Mr. Turvey said the company would continue its digitizing of books from partner libraries. He would not comment on reports from some library partners that Google had slowed the pace of that scanning.