Kim. D. Gainer
Radford University
Google Books allows readers to search digitized books as if they were web sites. Depending upon a book’s copyright status and upon the settings chosen by authors and publishers, the results of a search may allow a reader to see as little as a snippet from a volume or as much as an entire book.
Google inaugurated this search feature in 2004. The following year, two suits charging copyright infringement were filed against Google. Litigation led to negotiation, and in 2008 a settlement was announced between Google, the Association of American Publishers, and the Authors Guild. This settlement was subsequently amended in 2009, and the amended settlement received preliminary approval, also in 2009. The final hearing on the proposed settlement was held the following year. The latest twist in the case occurred last month, when, in spite of having granted preliminary approval, the judge in the case rejected the settlement. Several groups, including the American Library Association, had expressed concern over such issues as the control that Google potentially would have gained over “orphan” books that are out of print and whose copyright holders are unidentifiable or unreachable.
In spite of the potential drawbacks of the settlement, it might have made many books available that are otherwise out of the reach of readers without access to large research libraries. Both the original and the amended versions of the settlement would have created a subscription service for libraries and other institutions that would have provided access to the full texts of books that were under copyright but out of print. In addition, a certain level of access to these books would have been provided free of charge. This free public access would have been available at one computer terminal for every 10,000 students at not-for-profit colleges or universities granting bachelor’s degrees and at one computer terminal for every 4,000 students at not-for profit colleges granting associate’s degrees. In addition, for public library systems, access would have been available at one terminal per each library building.
The future of the proposed subscription service and of free public access to the full texts of copyrighted books that are out of print is now uncertain, but readers who have been conducting searches via Google Books will not notice any immediate reduction in their current access to resources as a result of the judge’s decision. Google has scanned two million books in the public domain, and those volumes will continue to be freely accessible in their entirety. Readers also still will be able to access expanded previews of some copyrighted books as a result of agreements separate from the proposed settlement. However, there will be no expanded access to the large number of additional books that would have been covered by the settlement.
Going forward, the organizations that originally brought suit against Google have several options, which include resuming litigation or renegotiating the settlement, as they have done once before. The judge in the case identified one modification that might make a settlement acceptable: changing an “opt out” provision for copyright holders to an “opt in” one instead.
Changes in the law may also revive the prospects for a settlement. In 2008 Congress considered legislation that would have addressed the problem of orphan books. The unresolved Google Books settlement may provide the impetus for Congress to return to the issue and pass the legislation that it failed to approve three years ago.
Meanwhile, instructors must help their student make effective use of Google Books as it currently exists. Students need to understand the impact copyright date will have on whether and to what extent they can access a book via this search tool, and they need to recognize that in some cases Google Books can point them to a resource that they may need to acquire via interlibrary loan or by visiting a bricks-and-mortar library. Even in its current restricted form, Google Books may be useful to students, even if only to illustrate that copyright matters to anyone seeking access to books.
This column is sponsored by the Intellectual Property Committee of the CCCC and the CCCC-Intellectual Property Caucus. The IP Caucus maintains a mailing list. If you would like to receive notices of programs sponsored by the Caucus or of opportunities to submit articles to either this column or to an annual report on intellectual property issues, please contact kgainer@radford.edu.
