updated 09:43 pm EDT, Wed May 8, 2013
Court examining merits of suit proceeding as class action or individual
A US federal appeals court has begun the discussion of whether plaintiffs in the Google e-book digitization project lawsuit should proceed as a class, or as individuals. The Authors Guild is claiming that the Google Books project is, in essence, copyright infringement on a massive scale -- and believes that a class of plaintiffs would squeeze more money out of the search engine giant more efficiently than separate suits, judged on individual merits.
Judge Pierre Leval, one of the three judges hearing the appeal, believes that Google's project, which seeks to create digital copies of most books in and out of print -- has merit. In the courtroom, addressing the effort, Level said that he believed that "a lot of authors would say, 'hey, that's great for me.'" Writers with obscure works would have the most to gain, assuming Google tells searchers where to find the works.
Lawyer for the plaintiffs Robert LaRocca argued that a survey Google conducted showing 58 percent of 500 authors approved of Google's project suffered from flawed methodology. "We think the vast majority of the class support [our position against Google]," he said.
The project could have "enormous value for our culture," said Circuit Judge Barrington Parker. "This is something that has never happened in the history of mankind."
Google lawyer Seth Waxman told the court that based on an agreement forged by the plaintiffs, Google would owe more than $3 billion in damages. Google has contended throughout the proceedings that the practice was "fair use", as it only provided portions of the works online. The case is likely to set precedent over whether an author or publisher has control over digital editions of printed books, and has the right to withhold or restrict third parties from using the works, even for a perceived public good.
An internal 2003 Google document described in the filing claims that searchers interested in book content should be directed to come to Google, not Amazon -- demonstrating that the scanning was never intended as "fair use" preservation. The "fair use" argument is the basis for Google's entire defense in the trials, the appeal, and public statements about the book-scanning project.
To execute the scanning, Google used hundreds of contractors in Boston, Ann Arbor, and Mountain View to run more than 300 machines. Libraries such as The New York Public Library, Harvard, Columbia, and Princeton only allowed Google to scan public domain works. Other libraries, including Wisconsin, University of Virginia, and Cornell, amongst others, showed no discrimination between public domain and copyrighted works. Google contractors made no specific judgement concerning the copyright status of any given book for scanning.
A $125 million settlement was reached in March 2011 between Google and The Authors Guild, but was rejected on legal grounds by Judge Denny Chin, despite his saying publicly that he sees tangible benefits to libraries from both the scanning effort and technology developed to scan the books.
Judge Chin said the agreement overreached because it gave Google a "de facto monopoly" to copy books without permission from rights holders, and served to increase its market share in online searches. The United States Justice Department, Amazon.com, and Microsoft had all expressed antitrust concerns about the settlement.