Google says that the Authors Guild is ... against authors

As reported by the IPKat (here), a month ago the Association of American Publishers (AAP) and Google announced the conclusion of a settlement agreement, intended to provide access to publishers' in-copyright books and journals digitised by Google for its Library Project. 

This agreement put an end to copyright infringement proceedings first brought against Google in 2005 by five AAP member publishers (McGraw-Hill, Pearson Education, Penguin Group USA, John Wiley & Sons, and Simon & Schuster). Since the agreement was concluded between the parties to the litigation, its terms did not require judicial approval (unlike what happened last year, when the class action settlement which Google had reached with the AAP and the Authors Guild in 2008 was rejected by Judge Denny Chin).

In any case, the settlement achieved with AAP did not affect the ongoing litigation between the Authors Guild and Google. As it was then commented by James Grimmelmann on Ars Technica, 

"This does exacerbate the publisher-author tension ... It used to be the publishers and authors are in this together against Google .... [Now] Google is going to increasingly use the consent of the publishers as an argument that the authors don't even speak for copyright owners."

Apparently what has been exacerbated is not just this, as there seems to be a divergence also between the interests of individual authors and their representative associations. At least, this is what Google is arguing in a brief submitted last Friday to the US Second Circuit Court of Appeals, in the context of litigation with the Authors Guild.

As explained on paidContent, what Google is asking is to throw out Judge Denny Chin's ruling in May last that let the Authors Guild sue Google on behalf of all authors whose books were scanned without permission. At the time Judge Chin had certified a class consisting of:

"All persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project, who are either (a) natural persons who are authors of such Books or (b) natural persons, family trusts or sole proprietorships who are heirs, successors in interest or assigns of such authors ..."

While certifying the class is a green light for a class action to go to trial, things are in standby at the moment, as last August the US Second Circuit Court of Appeals granted Google permission to appeal the certification. 

 Sometimes "adding something new" may
not be appreciated enthusiastically

What Google is arguing now is that a suit filed on behalf of all authors whose books have been scanned should not be allowed because: 

(1) the Google Library Project is fair use: "Google's uses [of copyright-protected materials] are transformative because they do not "supersede" the books but rather "add ... something new," a greatly improved way of finding them ... The transformative nature of Google Books and the fact that, as a general matter, it makes books more accessible, more likely to be read and cited, and more likely to be sold render the entire project fair use." [Merpel recalls that this very argument is currently being used by Google also to fight proposed charges on its News service, on which see here and here] 

To support its argument, Google recalls that in Google Books you cannot find any snippets of reference works such as dictionaries or cookbooks or books of short-form poetry, where even a small snippet could potentially substitute for the reader's accessing the book itself.

(2) the Authors Guild "cannot adequately represent ... the large number of class members who would be harmed if [the Authors Guild] prevail - that is, the many class members who benefit economically and in other ways from the Google Books project and do not want to see it curtailed."

Apparently, the Authors Guild itself had recognised as early as 2004 that many books could benefit from exposure through Google Books.

Camille agrees that it would be impractical
to ask for permission first

In addition, according to a Google survey of 880 randomly selected published authors, 58% approve of including their books in the snippet view, 45% believe inclusion helps sales of their books, and 19% believe it advances their economic interests more generally. Only 15% of those surveyed objected to Google Books' inclusion of their works. Still according to the brief, for authors who object, Google has a policy of removing books from snippet view on request. 

In light of these data, Google claims that what the plaintiffs (these being the Authors Guild and two individual persons) are trying to do is "to dismantle a project that benefits many, and perhaps most, other class members."

Furthermore Google argues that, should the court decide that Google must contract with each copyright holder in order to include a work in Google Books (as was basically requested by Judge Chin when he rejected the 2011 settlement), "it would be impractical to continue with the project in the present form."

We'll see what happens next. In the meanwhile, there remains the Google Books/Hamlet dilemma - Who serves best the interest of authors: Google or authors' associations?