In the latest twist to the long-standing case brought by, among others, the Authors Guild (“Guild”) and the American Society of Media Photographers (“Society”) in 2005 against Google for the damages the plaintiffs claim they suffered as a result of Google’s unauthorized online book-scanning project (entitled Authors Guild v. Google, 05-08136 and American Society of Media Photographers v. Google, 10-02977, both in the U.S. District Court, Southern District of New York), Google sought to have the Guild and Society dismissed from the suit, claiming that the individual authors must sue Google individually.
The case revolves around Google’s practice over the past eight years of scanning books or snippets of books en masse, to the tune of twenty million books so far, and having them publicly available on its http://books.google.com/ website. The books are sourced from public and university libraries such as the New York Public Library as well as the libraries of, among others, Oxford University, Harvard University and Stanford University. Millions of authors have been affected by the book-scanning project.
Google argued that the Guild and Society do not own the copyrights which Google claims are central to the case. Rather, the individual authors and other artists are the rightful owners. Furthermore, the individual authors and artists possess the facts about copyright ownership, economic issues and the specific details of each individual case. Hence, the Guild and Society cannot represent the individual authors and artists in the law suit. Google also claims that its book-scanning project falls under the “fair use” doctrine of copyright law. It further asserted that many of the subject authors gave away their rights under their contracts with their publishers.
The Guild’s attorney threw cold water on Google’s contention that each individual author should litigate its claims against Google individually, noting that a class action was superior because the authors would face an oppressive burden if forced to litigate individually. The individual artists lack the funds to pursue Google in court, and the monetary award each artist would be entitled to would make prosecuting individual suits impractical. The plaintiffs’ attorney also noted that individual artists would be discouraged from pursuing a behemoth like Google.
Judge Denny Chin, the judge presiding over the case (which he has kept even though he is now sitting on the U.S. Second Circuit Court of Appeals) questioned why it was so important to decide at this juncture who possesses the ownership rights to the copyrights. He raised the possibility of having that issue decided in the damages phase of the action.
Almost a year ago Judge Chin threw out a $125 million settlement agreement between the Guild and Google.
Apparently, Judge Chin expressed support for Google’s book-scanning project in theory because it would make books more widely available to researchers, libraries and schools, but he strongly disapproved of Google’s practice of scanning material first and only seeking permission after receiving complaints.
Google is in settlement talks with several book publishers, although nothing concrete has materialized on that front. The book publishers were not involved in this latest hearing.