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A partial win for Google

The latest decision in the seemingly-never-ending battle between the Authors Guild and Google over digitization of books for online use gave Google a partial victory in the courts yesterday.

The United States Court of Appeals for the Second Circuit, in Manhattan, vacated an earlier decision of the District Court that put the Authors Guild in the driver’s seat for the litigation and sent it back to the trial court for a decision that could give Google an outright win.1

Here’s the story.

The Authors Guild filed suit against Google back in 2005, arguing that the online giant’s efforts to scan books for online use was a violation of the copyrights of the authors. And the Guild brought the suit as what’s called a class action.2

The complaint alleged that Google was infringing the authors’ copyrights by scanning books and by making snippets available online if the books were still under copyright protection. It sought statutory damages — which can run as high as $150,000 per violation3, plus costs and attorneys’ fees.4 Google had estimated that, if it lost the suit, it could face billions of dollars in damage awards.5

In 2008, the two sides seemed to have reached a compromise that would settle the case with a payment of $125 million and the creation of a system where authors would share in future profits from the digitization project.6

But after years of wrangling over the settlement in the courts, the whole proposal was shot down by U.S. District Judge Denny Chin, the trial judge, in 2011, who said the settlement did not meet the legal standards required for settlement.7

At that point, Judge Chin went on to decide that the Authors Guild and several individual authors could proceed with the case as a class action.8 That meant that the Authors Guild was allowed to act on behalf of every author affected by Google’s digitization, whether the author wanted to sue Google or not.

Now whenever a case goes forward as a class action, there’s a lot of pressure on the defendant to settle. The aggregation of damages ranging from $30,000 to $150,000 per member of the class changes the whole dynamic, That’s why the fight in most cases like this one isn’t over the merits; it’s over whether or not the case gets certified as a class action. If it is, plaintiff has the upper hand. If it isn’t, things shift back to the defendant.

What the Second Circuit did yesterday was toss out the class certification — and that’s an important, but partial, win for Google. What may be even more important was the Circuit Court’s direction to the trial judge to consider, first, the question of whether what Google is doing falls within the fair use doctrine.

And if Google wins that, it’s case over.

Now why is this important to genealogists?

Two reasons.

First and foremost, none of us wants to lose the access we have now to the vast library of materials that are what we use everyday as part of Google Books. To the extent that digitization allows full-text searching of millions of resources held in libraries around the country, it’s a wonderful thing. Being able to find out what books contain references to specific people and specific places should help us target our research in a way that hasn’t been possible before.

But, second, too big a win for Google — if it eventually gets the green light to put whole pages of copyrighted works online — may sound the death knell for many small publishing companies including those that are important to our community.

So it’s something to watch — and still worry about.

Stand by as the case goes back to the trial court.


 
SOURCES

  1. The Authors Guild et al. v. Google, Inc., No. 12-3200-cv, U.S. Court of Appeals for the Second Circuit, slip opinion, 1 July 2013, online at court website (http://www.ca2.uscourts.gov/ : accessed 1 July 2013).
  2. See Complaint, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Justia (http://dockets.justia.com/ : accessed 4 Sep 2012).
  3. See 17 U.S.C. § 504(c).
  4. See 17 U.S.C. § 505.
  5. See Larry Neumeister, “Google Books Lawsuit: Authors Guild Demands $3 Billion,” Huffington Post, posted 8 May 2013 (http://www.huffingtonpost.com : accessed 1 July 2013).
  6. See
    $125 Million Settlement in Authors Guild v. Google,” The Authors Guild (http://www.authorsguild.org/ : accessed 1 July 2013).
  7. See opinion, 22 March 2011, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Copyright.gov (http://www.copyright.gov/ : accessed 1 July 2013).
  8. See opinion, 1 June 2012, The Authors Guild et al. v. Google, Inc., 05 CV 8136, U.S. District Court for the Southern District of New York, online at Justia (http://dockets.justia.com/ : accessed 1 July 2013).
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