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Google’s Recent Settlement Agreement with American Publishers Does Not End its Copyright Woes

By: Cory Howard *

Although traditionally printed books have not yet become obsolete, America and most of the developed world has begun its transition from printed materials to electronically available media. Recent studies have verified that e-reading is on the rise and as a result, e-book providers such as Google are under pressure to increase the amount of digital content that it offers through its electronic stores. However, the process by which print sources are scanned and converted to electronic form, called digitization, has been a consistent source of litigation for Google and has slowed the process of digitization considerably in markets throughout the world. Authors of out-of-print books that are still under copyright have opposed the unapproved (and uncompensated) digitization of their books by Google. Both the United States and France have seen publishing coalitions, such as the Authors Guild (U.S.) and the French Publishers Association and the Société des Gens de Lettres (France), bring suit against Google to stop the digitization of books in this category.

However, e-book consumers have a reason to breathe a sigh of relief as Google has recently entered into a settlement agreement with American publishers that will allow authors to choose whether or not to participate in the technology giant’s digitization process. This settlement agreement is the second attempt by Google to stave off costly litigation and comes after a federal district court judge in New York vacated a settlement agreement initially struck between Google and publishers in March of last year. Although the first settlement proposal was struck down out of fear that Google would have been granted too much control over digitized content, Judge Denny Chin left open the possibility of a valid agreement if the settlement was converted from an “opt-out” arrangement to one in which the publishers “opted-in” to Google’s digitization program. However, since the recent agreement was reached privately to settle the publisher’s claims and does not resolve the copyright claims by authors, the settlement agreement is not subject to court approval. Therefore, although the agreement that was changed to include the judicially approved “opt-in” arrangement, Google does not have to seek judicial approval of its recent settlement agreement.

Although Google’s settlement agreement will permit it to continue on with its Library Project, it does not settle the copyright claims that authors brought against Google over the unapproved use of their works. Paul Aiken, the executive director of the Author’s Guild, one of the members of the class-action suit against Google, has reiterated that Google “continues to profit from its use of millions of copyright-protected books without regard to author’s rights, and our class-action lawsuit on behalf of U.S. author’s continues.” The publisher’s rapprochement with Google, while integral to the continuation of the Library Project, does not mean the cessation of copyright claims that have plagued the California-based internet giant since the project’s inception in 2004.

* Cory Howard is a second year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in International Affairs. Upon graduation, Mr. Howard plans to pursue a career in corporate law.