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Trial Date Set for Next Year in Google Digital Library Case

Published onNov 06, 2011
Trial Date Set for Next Year in Google Digital Library Case

Google aims to create the world’s largest library.  Depending on the outcome of its pending litigation with authors and publishers, we may see the realization of that goal sooner rather than later.  The benefits are obvious: making a massive array of books available, including books from all over the world as well as books that are currently out of print, would improve access to knowledge.  In fact, as part of an earlier, unsuccessful attempt to resolve the litigation, Google announced it would offer at least one terminal in each public library, allowing free access to its digital library.  In addition, Google further committed to providing accommodations for those who are visually impaired.

However, authors have been up in arms over Google’s alleged copyright infringement of their works in its quest to form its digital library.  Specifically, Google had used snippets of authors’ works without obtaining the right to do so.  Moreover, Google came under fire for its scanning of orphan works.  An orphan work is a copyrighted work whose copyright owner cannot be found.    That is why the Authors Guild and the Association of American Publishers brought suit against Google in 2005 for copyright infringement.  Yet, Google is seemingly in a good position, despite the ongoing litigation.  Attorneys for both the Authors Guild and the Association of American Publishers indicate that progress is being made, hinting that a settlement may be reached before the trial date.

At this point, following over six years of litigation, the date for trial has been extended to July 2012.  A prior settlement agreement reached by the parties was rejected by the judge who, in agreeing with the Department of Justice, believed a potential Google monopoly would result.  The judge said that the proposed settlement, which was for $125 millionneeded to be amended so that authors would be presumed to be excluded from the class action settlement, and included only if affirmatively “opting-in.”  The rejected settlement would have done the opposite, using the automatic opt-in approach, requiring affirmative steps in order to opt-out.  This is a significant difference, since an estimated 88% of authors had passed on their right to decide, which is an opt-in by default.  Thus, it is easy to see why Google is averse to the default opt-out method.  Since Google already has about 15 million books on its shelf, and it plans to reach 130 million once a settlement is finalized, an automatic 88% would go a long way towards filling that shelf in one fell swoop.

The opt-out provision in the settlement was one of the more salient issues with the proposed amended settlement that was rejected by the court.  However, some critics note that other weaknesses will need to be addressed as well.  The status of orphan works has also been a focus of criticism.  The October 2008 settlement agreement, as well as the November 2009 amended settlement agreement, both contain terms offering Google protection against suits filed by copyright holders of orphan works.  Since this protection would be unique to Google, and given that there are as many as five million orphan works, Google would end up with a significant leg up on the competition due to its dominance within the orphan works category.

Ultimately, since the parties indicated that a new settlement is likely to be reached, there will likely not be a need for a trial.  Yet, the judge’s deadline of June 2012 will push the parties to hammer out the details of a new settlement without any further delay.  It seems obvious that a digital library of books would be extremely beneficial to the public; however, if one company is permitted to set prices in the absence of significant competition, those benefits will not be as great as they could be.

*  Lena Mualla is a second-year law student at Wake Forest University School of Law.  She holds a Bachelor of Arts in Government and International Politics from George Mason University.  Ms. Mualla, a Fulbright award recipient, taught English in Indonesia prior to entering law school.  Upon graduation, she intends to practice international law or environmental law.

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