Google Books Update. Authors’ Guild and Foreign Authors’ Societies File Surprise New Lawsuit Against Universities Seeking Impoundment of Scans of 7 Million Books

Procedures are moving forward to trial in August, 2012 in the seven-year old case Authors Guild, et al. v. Google Inc., No. 05-Civ-8136, after Southern District of New York Judge Denny Chin rejected the parties’ proposed settlement in March. A September 15th status conference in front of Judge Chin provided a clearer picture as to the current status of the case. The parties, and ultimately Judge Chin, agreed to a newly extended schedule on pretrial proceedings, including restarting discovery, as only a small amount of document production has been conducted since 2006.

Judge Chen ordered a discovery and motion schedule that will have the case going to trial in August of 2012. Settlement discussions are expected to continue between the parties during this time. While Google attested to significant progress in the settlement discussions with the Publisher Class, talks with the Author Class are reportedly stalled. Attorneys for the authors expressed less optimism about settlement, even suggesting that Judge Chin appoint a magistrate judge or mediator to assist with negotiations. Google’s attorney rejected the offer. Interestingly, in the status conference, Judge Chin specifically inquired whether plaintiffs (including the Authors’ Guild) wished to expand their complaint beyond Google’s online display of only snippets of books. Plaintiffs accepted the offer and confirmed that their case went beyond online display of snippets, and included copying, scanning, storing and displaying the works as well. An amended complaint will be soon filed.

In a dramatic twist, three days prior to this Google Books status conference, the Authors’ Guild (together with an Australian Society of Authors, the Quebec Writers’ Union and eight individual authors) filed a new lawsuit, this time, against the HathiTrust Digital Library, the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University.

By way of background, the HathiTrust, a library partnership created in 2008 by the University of Michigan, receives digital scans of books from libraries following the works being scanned. HathiTrust then creates multiple copies of the scanned files, not simply to back up the books, but with the additional intent to offer public bibliographic information about the books and a full-text search. Unlike Google Books Search, the HathiTrust does not provide full textual results. In response to a search request, HathiTrust merely displays the page numbers where a user can find the searched terms. Should a book be in the public domain or deemed an “orphan work,” HathiTrust will allow users (including students and faculty members) to read the book online and member Universities to download the book.

The complaint alleges copyright infringement against the institutions resulting from scans made as part of the Google Books project and pooled by the Defendant Universities into the HathiTrust. The plaintiffs are seeking an injunction to prevent the HathiTrust from continuing to scan, duplicate and distribute digitized books and to impound the files already scanned (on estimated 7 million books). In addition to the injunctive relief, the plaintiffs are seeking a declaration that the HathiTrust’s scanning, duplicating and distribution of books violates copyright law.

Most interestingly, the complaint against the HathiTrust specifically targets the Orphan Works Project. Orphan works are works that are subject to copyright but for which copyright holders cannot be identified or located after a reasonable search. According to the Authors’ Guild, a simple search (including queries of standard copyright-related databases and phone calls) revealed that 4 out of 166 books identified by the HathiTrust as “orphan” were not. Accordingly, the Authors’ Guild claims that serious issues exist in the process being used by the HathiTrust to identify orphan works.

The saga is far from over. It will be interesting to see how the HathiTrust case (or the “Orphan Wars” as some have called it) plays out parallel to the Google Books case and whether Congress will finally be inclined to resume its efforts toward an orphan works bill.



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