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A Guide for the Perplexed: Libraries and the Google Library Project Settlement

By Jonathan Band, Published on December 14, 2008

On October 28, 2008, Google, the Authors Guild, and the Association of American Publishers announced the settlement of the litigation concerning the Google Library Project. Under the project, Google has been scanning into its search database millions of books provided by major research libraries and other sources. For those books not in the public domain, the publishers and authors claimed that Google’s scanning infringed their copyrights. The settlement still requires the approval of the presiding judge in the US district court in New York because the case was brought as a class action on behalf of all affected rightsholders.

The settlement presents significant challenges and opportunities to libraries. This paper does not explore the policy issues raised by the settlement. Rather, it outlines the settlement’s provisions, with special emphasis on the provisions that apply directly to libraries. The settlement is extremely complex (over 200 pages long, including attachments), so this paper of necessity simplifies many of its details. This paper should not be treated as legal advice, and libraries considering joining the settlement should retain counsel to advise them on the settlement’s intricacies. Page references to the agreement are included in parentheses.

Basic Framework

Under the settlement, Google will continue scanning in-copyright books into its search database, and will continue to enable users to search the full content of the scanned books. The settlement creates a mechanism for Google to pay rightsholders for the right to display more of the text of books than it displays under the current program. This mechanism is the Book Rights Registry (BRR) that will distribute the payments from Google to the copyright owners. Google, in turn, will generate revenue through advertising and by selling to users the ability to see full text. Google will retain 37% of the revenue it generates under this program, and will pay the other 63% to the BRR. Additionally, Google will make an upfront payment of a minimum of $45 million to the BRR for distribution to rightsholders whose books will have been scanned by January 5, 2009. The BRR’s board of directors will consist of equal numbers of representatives of publishers and authors.

The settlement defines a book as a published or publicly distributed set of written or printed sheets of paper bound together in a hard copy. The settlement specifically excludes periodicals, personal papers (such as unpublished diaries or bundled letters), or works with more than a specified amount of musical notation and lyrics. The settlement also excludes books not registered with the US Copyright Office, unless the book was first published outside of the United States.

The settlement contemplates three categories of books:

By consulting with existing databases, Google will make the initial determination of whether a book is commercially available. The settlement sets forth a procedure for the rightsholder or the BRR to challenge Google’s classification. Similarly, Google will determine whether a book is in the public domain, subject to a challenge by the rightsholder or the BRR. The settlement provides Google with a safe harbor for erroneous initial classifications.

The settlement establishes default rules for what Google can do with the two categories of in-copyright books—display uses (discussed below) are turned on for books that are not commercially available and are turned off for commercially available books. (Google has complete freedom with respect to the public domain books since they are not subject to copyright.) Significantly, the settlement does not apply to books first published after January 5, 2009. Additionally, rightsholders will have the ability to opt-out of the settlement altogether, to remove specific books from Google’s servers, or to vary any of the default rules with respect to specific books. Thus, as a practical matter, the settlement probably will have limited applicability to in-copyright, commercially available books; the rightsholders likely will closely manage their rights in these books rather than subject them to the settlement’s general default rules.

This means that the settlement primarily focuses upon the universe of in-copyright books that are no longer commercially available. Google estimates that approximately 70% of published books fall in this category, 20% of published books are in the public domain and outside of the settlement, and 10% are in-copyright and commercially available.

Service and User Types

The settlement provides different free and fee-based services to three different but overlapping categories of users: all users; public libraries and universities; and institutions.

All Users — Free Services

All Users — Fee-Based Services

Free Public Access Service for Public Libraries and Universities

Institutional Subscriptions

Pricing of Institutional Subscriptions

Library Types

Under the existing Google Library Project, Google has numerous partner libraries that have provided it with books to scan. In exchange, Google has provided these partner libraries with digital copies of the books. The settlement creates four categories of partner libraries with different rights and responsibilities: fully participating libraries, cooperating libraries, public domain libraries, and other libraries.

Fully Participating Libraries

A Fully Participating Library’s Use of the LDC

The settlement specifies in detail what a fully participating library can and cannot do with its LDC.

Security Obligations

A fully participating library must follow detailed procedures to protect the security of its LDC. These same procedures apply to host libraries, discussed below, as well as Google.

Additional Library Categories

The settlement recognizes three other categories of libraries partnering with Google in the Library Project: cooperating libraries, public domain libraries, and other libraries.

Non-Exclusivity

Research Corpus

The settlement allows for the creation of two centers (in addition to Google) that would host the Research Corpus, the set of all digital copies made in connection with the Google Library Project. (p. 17)

Google’s Obligations

Process Going Forward

Note: This article was prepared for the American Library Association and the Association of Research Libraries.