The Google Settlement

Let's start with two givens. First, Google is an outstandingly innovative company. Millions of us use Google search, e-mail, maps and other applications on a daily, if not hourly, basis. Second, Google is no more above the law than any other company, no matter how much social benefit one of its projects would arguably bestow on society. Yet its proposed settlement of a copyright lawsuit initially brought by some authors and publishers goes far beyond what class-action settlements are supposed to achieve and is tantamount to private legislation.

Google has been scanning books from major research libraries, such as the University of Michigan, since 2004. The initial goal was to index the contents of books to provide snippets to users whose queries yielded Google Book Search (GBS) results. Google believed that its scanning of in-copyright books was fair use, because it wasn't displaying substantial parts of book contents and because it facilitated access to them by linking to libraries or bookstores from which they could be obtained. (A fair use does not infringe copyright, insofar as it is done for a beneficial purpose and does not unreasonably harm the copyright owners' interests.)

In fall 2005 the Authors Guild and five major book publishers sued Google, claiming that its book scanning was copyright infringement. Soon thereafter, Google began negotiating a settlement of this dispute with the guild and members of the Association of American Publishers. In October 2008 Google, the guild and the AAP collectively announced a settlement agreement they had devised on behalf of a class of all people who own a US copyright interest in one or more books, with the guild representing the author subclass and the AAP the publisher subclass. Because of US treaty obligations, the proposed settlement class includes all owners of copyright interests in all books in the world. Google has pledged $125 million to settle the lawsuit, $45.5 million of which will go to the lawyers who negotiated it. (The lawyers are getting $500,000 more than Google has set aside for payments to rights holders of all of the in-copyright books now in the GBS corpus.)

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