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Copyright law, Digitization, Fair use, Google Book Search, Amended Settlement Agreement, Publishers, Authors


The sprawling Google Book Search litigation began as a dispute between the search engine colossus and a variety of authors and publishers over the legality of Google’s book digitization effort, the Google Book Search project (“GBS” or “Google Book Search”), for the purpose of indexing paper collections and making them searchable on the Internet. However, through the metamorphic power of class action litigation, a dispute over mere indexing and searching has been transformed into a comprehensive agreement over the future of the book as a digital commodity. Understanding this transformation and its implications is the central ambition of this article.

The initial lawsuits filed against Google posed conceptual as well as practical questions for the administration of copyright law. Google’s massive digitization effort aims to promote digital access to paper-based collections that are relatively inaccessible. This goal, while laudable, appears to conflict with the rights and interests of authors and publishers and their decidedly pre-digital business models. The critical question in the litigation was whether intermediate copying of the kind pursued by Google should be considered a fair use as that term of art is understood in U.S. copyright law. Thus, for a time at least, it looked as though the Google Book Search litigation would address fundamental questions over the relationship between copyright law and copy-reliant technology. It is hard to imagine higher stakes: if Google had lost the fair use argument, it might well have sounded the death knell for the legal strategy embedded in the current architecture of all Internet search technology.

On October 28, 2008, Google announced that it had reached a settlement of the class actions brought by the Authors Guild and various publishers (the “Settlement”). The Settlement circumvents the critical fair use issues at the heart of the legal dispute, but it raises in turn some fundamental questions about the administration of copyright law. Specifically, the Settlement charts new territory in the resolution of copyright disputes through class action litigation.

The Settlement does much more than simply allow Google to continue within plausible fair use parameters, i.e., digitization accompanied by search and very limited display of books. Instead, it transforms the Google Book Search universe into a vehicle for the direct electronic distribution of entire manuscripts through consumer purchases and institutional subscriptions. Controversially, the scope of works capable of electronic distribution includes not only those whose owners opt in, but rather all those whose owners fail to opt out.

The initial Settlement was followed in short order by a maelstrom of objections by foreign governments, academics, and individual authors. Finally, after the U.S. Department of Justice (DOJ) added its own considerable objections, the parties agreed to revise the deal in late 2009. The Amended Settlement Agreement, filed on November 13, 2009, addresses some, but by no means all, of the objections raised by the DOJ and other critics of the original deal. Oral arguments in the final fairness hearing regarding the Amended Settlement Agreement were held before the U.S. District Court for the Southern District of New York on February 18, 2010. At the time of this article’s publication, no decision has been issued by the district court. If the Amended Settlement Agreement is ultimately approved by the court, it will end four years of uncertainty and clear the way for Google to continue to digitize millions of copyrighted library books and further develop the Google Book Search project. The question remains, however: Should the Amended Settlement Agreement be approved?

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New York Law School Law Review


© Matthew Sag 2010