There have been quite a few stories about the news that Google has settled with the Association of American Publishers in its long-running lawsuit alleging copyright infringement in the Google Books project. There are stories in the NY Times, Chronicle of Higher Education and Inside Higher Ed.
As all of the stories note, the terms of the agreement are confidential, so we really do not know much about what has happened. So there is very little to say, and most of it is grounded on uncertainty. To a sensible person that would suggest reticence, yet here I am writing a blog post about the settlement. My modest purpose, however, is to address three questions that I have heard, in order to lower expectations about what has happened.
First, How is this settlement related to the earlier one that caused such a fuss and was ultimately rejected by the Judge?
The answer here is that it is not really related. That proposed settlement was a “class” agreement that would have bound essentially all authors who owned a copyright. It was because of its sweeping scope that it had to be approved by the Judge, and because that scope was too sweeping that Judge Chin rejected it. This settlement, on the other hand, is just between the named plaintiffs — several large publishing houses — and Google. It makes the publisher half of the lawsuit go away (the Authors Guild is continuing with their part of the litigation), and it sets terms for how Google will deal with books from those publishers. It does not have any impact on relations between Google and any other authors or publishers, although it acknowledges what has really been the case all along — that Google will withdraw materials if a publisher asks and will enter in to agreements with individual publishing houses.
Second — What does this settlement say about fair use?
As far as we know, the answer is that it says nothing about the key issue in the lawsuit — whether or not the Google digitization for the purpose of creating an index and providing a “snippet view” of in-copyright books is fair use. That issue is still being litigated, with the Authors Guild as the plaintiff. For the publishers, there apparently is some language about how much of a book Google can display; it is more than mere snippets, but it is not clear to me how that permission relates to other provisions of the settlement. In any case, the settlement does not, and cannot, decide the fair use assertion. In terms of fair use, we know no more today than we did yesterday, before the settlement was announced.
Third, how is this settlement related to the Georgia State decision?
Once again, the answer is that there is no direct relationship. The settlement is not really about fair use, but rather avoids the question that was addressed directly in the GSU case. The only relationship is that the AAP, which was a plaintiff in the Google case and has now settled to avoid continued litigation, is also bankrolling half of the litigation costs in the ongoing GSU case. One could speculate that the the AAP decided to settle with Google because it wanted to avoid another case where fair use was affirmed, or that the cost of the GSU case, especially after the plaintiffs have been order to pay nearly 3 million in fees and costs incurred by GSU and where an appeal has just been filed, caused the AAP to decide on a strategic retreat from the other, probably more expensive, case. But both of those possibilities are pure speculation. In fact, the length of time that settlement negotiations usually take make it unlikely that recent events had a direct causal relationship to this settlement, but it is certainly possible that the overall trajectory of the GSU case over the past three months was a partial motive for the AAP move as quickly as possible to settle with Google.
In short, I think there is very little to see here. I am glad when litigation is settled, as a general principle, because I think agreements are usually better, and more efficient, than lawsuits. And the educational benefits of the Google digitization efforts are important, so I am glad a little of the pressure has been taken off of those efforts. But this news of a settlement in the publisher half of this lawsuit is worth only a smile and a nod of approval, I think, before we turn back to the day-to-day struggles of higher education in a digital age.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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- Dave Fernig on Going all in on GSU
- Gretchen McCord on Going all in on GSU
- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
- Paul Callister on Swimming in muddy waters
- Jim Neal on Free speech, fair use, and affirmative defenses