Google and Publishers Settle; Authors Soldier On

Google and the five publishers who sued it in 2005 over Google Books have settled their lawsuit. Under the agreement:

US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.

Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works.

Since Google has already been offering an opt-out for publishers who identify and claim their books, and since Google already works with publishers to sell their books through Google Play, the settlement does not change the situation on the ground in any significant way. In the last few years, Google and the publishers have made their peace; this is just the treaty-signing ceremony. The publishers have embraced the digital transition in books; Google is now a player and partner in that ecosystem, rather than a dangerous disruptive presence. The other terms of the settlement—such as whether any money is changing hands as part of it—are confidential.

I’ve been saying as much to reporters all day, but Andrew Albanese at Publishers Weekly did pick up a detail that wasn’t clear from the press release:

In addition, under the details released, publishers deciding to have their scanned works included in the Google database can opt to receive a digital copy for their use. Google director of strategic partnerships Tom Turvey told PW that publishers will own the scans provided to them by Google, and will have “broad” rights to commercialize them or make them available in other search engines.

That last sentence is significant, because it means that the scans may have lives outside of Google Books and Google Play. I would be very curious to know what, if any, the limits on those “broad” rights are, and how those limits compare to the limits placed on Google’s library partners’ use of their own digital copies. Those latter copies are the subject of the ongoing HathiTrust lawsuit, so the presence of similar digital copies in publishers’ hands is an interesting complication.

Meanwhile, the Authors Guild’s lawsuit against Google continues. Not that it’s going anywhere soon, given that the Second Circuit is currently spinning up to hear Google’s appeal of class certification, but still it continues. The publishers had been hinting for over a year that they were ready to settle with Google; they stood back while the authors pressed the suit. Now it’s official.

If you’re curious what all of this means, come join us at In re Books on October 26 and 27 to talk about law and the future of books.


I’m now a bit confused about “publishers” “authors” and “copyright holders.” I hope you can help. Does this decision only apply for publishers who are the copyright holders, or do the contracts generally allow the publishers to act as an agent to the copyright holders for commercial negotiation? I suppose the same can be asked of the authors - is the Author’s Guild only representing authors who are copyright holders? Or is it acting on behalf of anyone of holds copyrights for the works of authors?

This settlement only applies on behalf of the five major publishers who originally sued Google: McGraw-Hill, Pearson Education, Penguin, John Wiley, and Simon & Schuster. This settles the lawsuit between them and Google. How this affects the author-publisher deals depends on the details of those contracts; the publishers are only authorized to act here if the contracts authorize them to.

According to the IHE article, “The agreement pertains to all publishers that are members of the AAP, as well as some that are not, according to a spokeswoman for the association.”

It would make sense that the AAP would ask the plaintiff publishers to get additional rights for all publishers in the settlement. Of course, the only “rights” that publishers seem to be getting that they did not have 7 years ago is the ability to get a copy of Google’s scans for their own uses.

Let me amend my last response. The Paid Content article on the settlement quotes a Google representative as saying that “the company ‘has very robust plans to increase analytics’ with publishers. This is significant because publishers have long been frustrated by Amazon’s unwillingness to share data like customer profiles and buying habits.”

It is unclear from the article whether this is a component of the confidential settlement or if it is purely a business decision on Google’s part. But in addition to being able to get digital scans, publishers may be able to get analytics. (And on the donation of the digital scans, I agree with Peter Brantley that “the value of that gift is open to debate.”)

It is hard not to conclude that AAP spent 7 years and millions of dollars in litigation for nothing.