On December 14, 2004, Google issued a press release that shook the publishing world to its foundations. Google announced the Google Print Library Project in which it would join with the libraries of Harvard, the University of Michigan, Oxford University and the New York Public Library to digitally scan their collections and make millions of titles available so that users worldwide could search for the books on Google. Larry Page, Google’s co-founder, stated, “Today we’re pleased to announce this program to digitize the collections of these amazing libraries so that every Google user can search them instantly...Google’s mission is to organize the world’s information, and we’re excited to be working with libraries to help make this mission a reality.”

Publishers and authors reacted with dismay. Not only did Google intend to scan public domain books no longer protected by copyright, but also to include those protected by copyright. No one could object to scanning books in the public domain, but to scan and make freely available works in copyright seemed a violation of the essence of copyright protection. Both the Authors Guild and the Association of American Publishers sought to blunt Google’s grasping for books in copyright.

THE DISPUTE BECOMES LITIGATION
Google, however, was not easily deterred from its goals; it argued that fair use under the copyright law allowed Google to copy books in copyright. Although the entire book would be copied, only a portion of it would be seen in response to a Google search. Keywords would locate relevant portions of the text, but since the whole book could not be accessed this appeared to Google to be fair use. As protest strengthened in the publishing community, Google temporarily stopped the program in the middle of 2005 and then, in August of the same year, announced its resumption and offered publishers a chance to opt-out by indicating which books could not be copied.

This offer was deemed unacceptable by both authors and publishers. In September, 2005, the Authors Guild joined three authors in filing a class action lawsuit to stop Google from moving forward. Authors Guild president Nick Taylor said, “It’s not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.”

In October, 2005, five major publishing houses—Simon and Schuster, Penguin USA, John Wiley & Sons, McGraw-Hill and Pearson Education—also sued Google. The Association of American Publishers (AAP) supported the lawsuit and its president, Patricia Schroder, observed that, “Google is basically trying to rewrite the copyright laws that have been on the books forever.” While she conceded that an online library was indeed being created, it was being created for “a megaprofit company with advertising that tracks you everywhere you go.” This advertising would create profits for Google that would not be shared with authors or publishers.

SETTLEMENT
After lengthy and painstaking negotiations that took place within the construct of these lawsuits (which had been coordinated before the same federal judge), a massive settlement was reached by the parties in October, 2008. While the settlement must still be approved by the federal court for the Southern District of New York, the more than three hundred page document offers significant protections and benefits to publishers and authors. Google has agreed to pay $125 million, of which $45 million would be used to pay authors and publishers whose books were scanned before May 5, 2009, the effective date of the settlement. The balance of the money would be directed toward establishing a Book Rights Registry (more about this later) notifying publishers and authors worldwide of the settlement, administering the settlement, and paying legal fees.

The settlement treats Google’s placing of a book online as a license. It then makes a crucial distinction between books that are out of print and books that are in print. To avoid interrupting the market for books that publishers have available for sale, the settlement makes one set of rules for out-of-print books and another set of rules for in-print books. It should be noted that an out-of-print book may still have copyright protection. Many books go out of print long before their copyright terms (now the author’s life plus 70 years) are reached.

Out-of-print books are considered to be in the licensing program, unless the rights holder gives notice that an out-of-print book should not be included in the program. On the other hand, in-print books are not in the licensing program unless rights holders agree to place such books in the program. This makes a great deal of sense, since the public will benefit by having access to books that are no longer in print. At the same time, publishers and authors won't be harmed by having books that are available for sale appear online.

THE BOOK RIGHTS REGISTRY
A key component of the settlement is the Book Rights Registry. Since the publishers and authors did not want Google to control the huge amount of information that would be generated (such as what books are in and out of print and who owns which copyrights), it was agreed that a Book Rights Registry would be created. The board of the Registry will have an equal number of representatives from authors and publishers. The Registry will keep track of data, control the data and license Google to make uses in appropriate cases.