Settlement Rumored To Be Close in Google, Publisher Lawsuit

Andrew Albanese & Jim Milliot -- Library Journal, 10/10/2008

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Sources say deal is imminent
Google, AAP say such talk is speculative
Settlement expected by most...eventually

(This article first appeared in the Oct. 9 issue of the LJ Academic Newswire.)

Nearly three years after its initial filing, it appears a settlement may finally be near in publishers’ lawsuit over Google’s controversial program to scan books from library shelves. Although rumors of a settlement have flared up and died down intermittently over the years, sources wishing to remain anonymous this week told the LJ Academic Newswire and Publishers Weekly that talk of a final agreement has indeed heated up, with one publishing insider confirming that a settlement was “imminent,” although no solid time frame was known.
Google Book Search
Asked if at least the broad strokes of a final settlement with Google had been reached, Association of American Publishers (AAP) spokesperson Judith Platt suggested that the rumor mill was starting its annual run-up to the Frankfurt Book Fair, which begins October 15. Google spokesperson Megan Lamb also referenced previous rumors about a settlement, and declined comment. “We’re still in discovery,” Lamb told the LJ Academic Newswire. “There’s no statement from [Google].”

Settlement expected…eventually
A settlement has long-been expected, as it would avoid what is setting up to be a messy trial. Industry-watchers have predicted the two parties eventually would reach some kind of blanket license agreement, noting that avoiding a court decision involving murky copyright and fair use boundaries is the logical, least risky—and least costly—option for both parties.

From the start, publishers have maintained that the wholesale scanning of copyrighted books from libraries is an unreasonable expansion of fair use, and that Google is creating a valuable asset without compensating rightsholders. Google has countered that its plan, which makes only “snippets” of copyright-protected books viewable online, is fair use, and that publishers, can also “opt out” of having their books scanned.

For both sides, however, litigating their case raises significant challenges. In October 2006, Google attorneys cast a wide net in its defense, asking for internal documents from Yahoo!, Microsoft, the AAP, HarperCollins, Bertelsmann/Random House, Holtzbrinck, and Amazon.com, reportedly seeking information on topics ranging from each company’s views on fair use to technical solutions and financial forecasts. That move raised troubling visions of deep-pocketed Google lawyers deposing publishers as well as their biggest competitors about their digital businesses and partnerships, at the very least portending a complicated, lengthy, and costly discovery phase.

Google, meanwhile, faces a content industry that is running out of patience with companies that launch products using copyrighted content in hopes of negotiating deals later. Recent months have seen innovative services like Red Lasso and popular upstarts like Scrabble knock-off Scrabulous removed from the Internet. And, of course, Google is currently facing a massive billion-dollar infringement suit from Viacom over its YouTube service.

Three years later
Unlike the Viacom suit facing Google, the AAP suit, filed in October 2005 on behalf of McGraw-Hill, Pearson Education, the Penguin Group, Simon & Schuster, and John Wiley & Sons, does not seek damages. It seeks an injunction that would essentially declare that Google’s scanning of an entire book still under copyright without permission is infringement. In a separate action, the Authors’ Guild has also sued Google on similar grounds.

Despite the lawsuits, Google’s library scanning efforts have not been deterred over the past three years. The Google Book Search Library Project now numbers over 30 partners worldwide, and has scanned over one million books at the University of Michigan alone. The suit, however, has affected how aggressively Google’s library scan plan has been implemented, with most new library partners scanning only public domain materials, and with most new deals not providing for “a library copy” of the scanned work, a contentious provision in Google’s early deals.