Google Book Project Tries to Placate the Critics: Will It Be Enough?

This article appears courtesy of Boston-based Sunstein Kann Murphy & Timbers LLP.

The Google book project began in 2002 as an effort to digitize millions of books. In December 2004, Google announced that it had entered into agreements with the libraries of Harvard, Stanford, the University of Michigan, and the University of Oxford, as well as the New York Public Library to "digitally scan books from their collections so that users worldwide can search them in Google." Google's press release said that it would make available "brief excerpts" of copyrighted material but that its use of these works would comport with copyright law.

In September 2005, the Authors Guild sued Google for copyright infringement. The Authors Guild styled its complaint as a class action brought on behalf of all authors whose books were on the shelves of the University of Michigan library. Several publishers joined the fray in October 2005, and their lawsuit was quickly consolidated with the Authors Guild litigation.

Three years later, the parties filed a detailed settlement agreement (the “Original Settlement”), which the IP Update discussed at the time. The Original Settlement would have allowed Google to compile and commercialize a database of virtually all books published anywhere in the world before 2009, or about 80 - 100 million books. Most of these books are still covered by copyright. To date, Google has digitized approximately 10 million of these books, and the process continues.

When the magnitude of Google’s copying first became apparent, the legal justification was that only snippets of the books would be made available through Google search, and that the publication of these snippets constituted fair use of the material. As discussions between Google, the Authors Guild and the publishers gained momentum, however, Google found itself in the rare position of being prodded to be more ambitious.