October 15, 2012
Federal Judge Harold Baer has dismissed the Author’s Guild’s copyright infringement lawsuit against five major universities who were working with Google on its massive book digitization program.
The universities, in a joint trust called the HathiTrust Digital Library, led by the University of Michigan, were scanning and posting books for Google.
The Author’s Guild claimed the universities and Google were illegally using copyrighted materials. Baer, however, said the project fell under ”fair use.”
“Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact),” Baer wrote.
“I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ (Mass Digitization Project) and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the (Americans with Disabilities Act).”
The rules of the trust indicate only books in the public domain can have a full text search. Those who own copyright on the other materials would need to give approval before Google can use them.
The ruling, of course, dismays the Author’s Guild.
“We disagree with nearly every aspect of the court’s ruling. We’re especially disappointed that the court refused to address the universities’ ‘orphan works’ program, which defendants have repeatedly promised to revive,” reads a statement by the Guild.
Orphaned works are those for which the author cannot be found. The Author’s Guild is worried the rights of those authors will be violated when universities make their content public.
“The so-called orphan works program was quickly shown to be a haphazard mess, prompting Michigan to suspend it,” said Paul Aiken, the Guild’s executive director. “But the temptation to find reasons to release these digitized books clearly remains strong, and the university has consistently pledged to reinstate the orphan works program. The court’s decision leaves authors around the world at risk of having their literary works distributed without legal authority or oversight.”
Although the Guild’s fight is over with the universities, its battle with Google is ongoing.
An appeals court judge deferred trial court proceedings last month between Google Inc. and the Authors Guild pending an appeal by the search engine company. Google is appealing an order granting the authors class-action status. The Authors Guild agreed to the suspension.
In March 2001, the judge rejected a $125-million settlement, saying it gave Google too much authority to copy books without consent from authors.
In the proposed agreement, Google’s share of the profit of sales from digitized works was 33 percent. The rights holders were to take the rest.
Once the court makes a decision on class-action status, the Guild’s suit will continue, unless the two groups can agree to a settlement on their own.
Such was the case between Google and The American Association of Publishers.
Nearly seven years after suing Google Books over the corporation’s plans to create the world’s largest digital books library, the two sides came to an agreement earlier this month.
While details of the agreement have not been made public, a news release states publishers can choose to make their works available to Google for the project, or choose to have them removed.
“Google Books allows users to browse up to 20 percent of books and then purchase digital versions through Google Play,” the news release states. “Under the agreement, books scanned by Google in the Library Project can now be included by publishers.”
The publishers involved in the case are the McGraw-Hill Cos., John Wiley & Sons, Simon & Schuster, and Pearson Education Inc. and Penguin Group (U.S.A.), both part of Pearson.
Publishers may also make individual agreements with Google. The arrangement does not require judicial endorsement to be put into operation.