A group of book publishers has dropped out of the long-running copyright battle over Google Inc.’s plan to scan the world’s books into a vast digital library. That’s good news for Google and its lawyers at Durie Tangri, but the project’s most vocal opponent, the Authors Guild, doesn’t appear anywhere close to following suit.
The Association of American Publishers announced Thursday that five member publishers that first sued Google for copyright infringement back in 2005 have agreed to drop their claims as part of an out-of-court settlement. The deal doesn’t resolve copyright claims over the Google Library Project by the Authors Guild and the American Society of Media Photographers. Those claims are still pending in U.S. District Court in Manhattan before Judge Denny Chin, who held onto the case after he was elevated to the U.S. Court of Appeals for the Second Circuit.
While the settlement itself is confidential, AAP, which is represented by Debevoise & Plimpton, has released some of the terms. According to the publishers’ statement, Google “acknowledges the rights and interests of copyright-holders,” and U.S. publishers can “choose to make available or choose to remove their books and journals digitized by Google for its library project.” Participating publishers will receive a digital copy of each scanned book for their own use.
Those are pretty much the same terms Google has been offering book publishers for years, New York Law School professor James Grimmelmann said. “This settlement is confirming a state of affairs that has existed for a while,” he said. The one potentially new development, he said, is that publishers will receive digital book copies from Google that they can then sell elsewhere. “For a publisher looking at a large back catalog, this is a good deal, because rather than doing the work [of digitization] yourself, Google has done it for you,” he said.
The terms of the deal are also very similar to the provisions of a proposed $125 million class action settlement Google reached with AAP and the Authors Guild in October 2008, which Chin rejected in March 2011. “Once the publishers negotiated that [settlement], they had the framework of a deal they could be happy with,” Grimmelmann said.
As Publishers Weekly reports, the publishers have most likely thrown in the towel because they now see Google as an ally rather than a threat. When Google’s Library Project launched, it was unclear how publishers stood to benefit commercially. Now that e-books are all the rage, publishers are teaming up with Google to sell titles on its e-book platform, Google Play. “The world has changed a lot,” AAP President Tom Allen told Publishers Weekly. “We much prefer to innovate than litigate, especially with important partners, so it was important to put this litigation behind us.”
Grimmelmann said he doesn’t expect the Authors Guild, which has been the most vocal plaintiff, to follow AAP to the bargaining table. He noted that after Chin rejected the proposed class action settlement last year, the Authors Guild, which is represented by Boni & Zack, doubled down on its copyright arguments by suing another digital library, HathiTrust, in September 2011. Publishers have to think about dollars and cents, Grimmelmann said, whereas some authors are more concerned with the principle of maintaining control over their work. “This is partly about the internal politics and economics of the publishing industry,” he said.
It may be a while before Chin can bring the case to a merciful end. As Legal affiliate The American Lawyer reported, Chin was set to rule on the crucial question of whether Google’s scanning efforts constitute “fair use,” but last month the Second Circuit stayed the case so it could weigh Google’s appeal of Chin’s May decision certifying the case as a class action.
The AAP is represented by Debevoise partners Bruce Keller and Jeffrey Cunard. Keller was not immediately available to comment.