Google-Publisher Deal Ignores Elephant In The Room: Fair Use

On Thursday, Google and five publishers settled a long-standing legal battle over whether scanning university-library books and using snippets in search results can be done without the permission of copyright holders. While the agreement lets Google continue its work, both sides deliberately avoided tackling the issue at the heart of the conflict: What does fair use mean in the digital age?

What Is Fair Use, Anyway?

Fair use is an exception to the copyright law that gives authors exclusive rights over their creative works. In passing the limitation, Congress tried to balance the rights of copyright holders with the need of academia, critics, columnists, reporters and researchers to quote other works. Google argued that the snippets it used in search results were protected under the fair-use doctrine. The company did not make whole books available without permission, but instead directed people to where the tomes were available.

But Google angered book publishers by not talking to them before scanning books. (Google did get permission from the libraries where the books were housed.) Publishers saw this brazen move as undermining their control over the books they've licensed from authors.

Google took on some of the biggest names in publishing, including McGraw-Hill Companies, Pearson Education, Penguin Group, John Wiley & Sons and Simon & Shuster. The Association of American Publishers represented the five companies in the lawsuit filed in 2005.

What We Know About The Settlement

Under the deal, publishers decide which books Google can digitize for its Library Project. Google can display up to 20% of the books OK'd by publishers and sell digital versions through Google Play. That's as much of the agreement Google and the publishers were willing to reveal. The settlement did not need court approval and the complete text has not been made public.

Over the last seven years, a lot has changed in the book-publishing world. The convenience of tablets and e-readers has turned digitized books into a real business, so it makes sense that publishers would now be more malleable. Turning the disagreement into a court battle would have placed the fair-use doctrine front and center, leaving open the possibility that a judge's interpretation could give either side much less than they wanted. As a result, agreeing to disagree on their rights under the law apparently seemed like the wiser choice.

"In terms of coming to an agreement on what was fair use, it was an agreement to disagree," Andi Sporkin, spokesman for the publishers told Wired. "We were able to get beyond that and establish business terms. Did we come up with a universal definition of fair use? No."

Despite The Deal, Little Has Changed

Google has not changed its argument that it has the right to scan whole books because it provides "enormous public benefits" by making it possible for people to find them. Because it makes only snippets available, Google argues there's no harm to copyright holders.

"Google Books makes use of works for the purpose of allowing readers to find them, not to read them directly," Google said in a court filing.

Nevertheless, having the whole book stored in Google's database without permission rankled publishers. They felt it gave them less control over their property.

The Authors Guild Fight Continues

Of course, this agreement does not end the legal wrangling. Google is still wrestling with the Authors Guild over the same issues.

Those opponents came to agreement last year, but a federal judge threw out the deal, saying the settlement gave Google more rights than those granted by Congress under the law.

The settlement, which had many of the same provisions as the deal with publishers, said Google couldn't be sued for digitizing so-called "orphaned works," which are books and papers for which there are no known copyright holders. A federal judge ruled that only Congress can decide the proper use of orphaned books and whether immunity from lawsuits is warranted.

Now that the publishers' suit is settled, people and companies with a stake in intellectual property law will be watching Google's dispute with the Authors Guild closely. For now, the Guild continues to talk tough.

"Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues," Paul Aiken, executive director of the guild, said.

Despite the no-surrender stance, the latest deal and the dramatic shift in publishing to the digital world is likely to eventually lead to an agreement. Google and the Authors Guild have done it before and they'll do it again. Like the publishers, no one is really willing to risk a court-imposed decision over the meaning and extent of fair use.

 

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