Inside Higher Ed: Publishers and Google end seven-year legal war

By Steve Kolowich, for Inside Higher Ed

October 8, 2012

The Association of American Publishers (AAP) and Google officially laid down their arms on 4 October, ending a seven-year legal war with a peace agreement that both parties plan to keep sealed from the public and the courts.

The AAP first sued Google in 2005, a year after it announced Google Book Search (also known as Google Books), a project the company had jump-started by scanning hundreds of thousands of books from the shelves of university libraries without seeking permission from the publishers or the authors.

The publishers and authors teamed up to file a class action against Google and, after years of negotiating, agreed on a settlement - only to have a judge reject it last year.

Last week's agreement does not involve the Authors Guild, which is now engaged in separate litigation with Google, nor does it require court approval or public disclosure.

According to Tom Turvey, director of strategic partnerships for Google's search services division, the basic thrust of the accord is this: All the books with publisher-owned copyrights that Google initially scanned into its database from university libraries will now be either removed from the company's database or made more easily available through the Google Books interface, which lets visitors read 20 percent of each book for free.

Prior to the agreement much smaller "snippets" of those works had been available through Google, said Mr Turvey in an interview.

The agreement pertains to all publishers that are members of the AAP, as well as some that are not, according to a spokeswoman for the association.

The exact terms of the deal are mysterious. In an interview, Mr Turvey and Tom Allen, the president of AAP, declined to expand on the terms of content licensing or whether the settlement involved any kind of additional payout.

If the agreement was momentous, it was also expected. "Google and the publishers made their peace a long time ago," said James Grimmelmann, a professor at New York Law School. "This is just the formal announcement of it."

Still, the implications for libraries and researchers should be positive, said Barbara Fister, a librarian at Gustavus Adolphus College.

"This potentially could be helpful, mostly because it signals a détente between publishers and Google - which isn't always a good thing for consumers but could mean some things will be more accessible or discoverable," said Ms Fister.

The fact that 20 percent of each book will be accessible free is also encouraging, she said. "It's very different from what trade publishers have said to public libraries, which basically has been, 'Drop dead,'" she said.

"If they do this and it doesn't hurt their bottom line," she said, "then it could help librarians make the case that sharing is good for business."

Kevin Smith, the scholarly communications officer at Duke University, said the lack of specific information offered up by the two parties makes it difficult to predict how the new agreement will affect academia in particular.

"Presumably some titles will be less accessible and some, maybe, will be more," Mr Smith told Inside Higher Ed. "In the general scheme of how research is currently being done I don't think it will make a big difference, but it might affect the results for specific research projects."

Also unclear is how the settlement between the publishers and Google could affect the other raft of plaintiffs, the authors. The Authors Guild has continued with its own litigation after last year's ruling dismantled its alliance with publishers.

Paul Aiken, the executive director of the guild, said he is confident the AAP deal will not harm his group's lawsuit. "The publishers' private settlement, whatever its terms, does not resolve the authors' copyright infringement claims against Google," said Aiken in an e-mail. "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 US authors continues."

But Jonathan Band, a Washington-based copyright lawyer, is not so sure. When the publishers and the authors were suing Google together, the murkiness of copyright ownership across the body of scanned library books worked in the plaintiffs' favour. "You could say, 'Either way, Google is infringing someone's copyright,' " said Mr Band.

Without the publishers on board, things get messier, he said. The Authors Guild could lose some of the clout it needs to show a degree of moral injustice that would warrant an injunction, he said.

"It just sort of says, 'Gee, how bad could Google's conduct be when all these publishers are settling on this much broader arrangement?'" he said.

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