Author's Guild Sues Google

Author's Guild Sues Google

by Jessica Zimmer, December 2009

Who doesn't love Google? Authors. As of September 20, 2005, the $90 billion search engine it has found itself the target of a class action suit. After declaring it will post material from library books in an online database called the Google Print Library, a group of writers and the Authors Guild filed suit in the U.S. District Court of the Southern District of New York for copyright infringement.

The Authors Guild, a New York-based non-profit organization, is the largest society of published writers in the United States with over 8,000 authors. In the suit, the writers have targeted one particular group of books, those from the University of Michigan. The suit names three writers as plaintiffs: Daniel Hoffman, a former U.S. poet laureate; Betty Miles, a children's and young adult author, and Herbert Mitgang, who has written a biography of Abraham Lincoln and numerous novels and plays.

The Google Print Library is a proposed searchable database of books, made up of collections from several libraries. While the company has said it wants to create a searchable library of all the world's books, it is beginning with several scholastic libraries. The University of Michigan, Harvard and Stanford are allowing Google to create searchable databases of their entire collections. The New York Public Library and OxfordUniversity are only giving Google access to collections no longer covered by copyright.

Google plans to scan entire books. They will make the whole book available to users only if the book is in the public domain or if publishers have agreed to place the book in the digital library. Otherwise, Google will display excerpts of books, perhaps three sentences per page, containing a searcher's keywords. The search engine will include information about the book and where to find it. Google sees its print library as a type of digital card catalog. After all, libraries catalog books they own and make these catalogs available to the public.

Since Google doesn't own the copyright to the original works it would keep on its site, how could the company possibly expect to avoid a lawsuit? Google cites fair use exception of copyright laws. Fair use authorizes the placement of segments of library books online and allows an entity to publish copyrighted material for educational purposes.

The writers disagree. They assert Google's use of the material is commercial, not educational, since the company will make money by selling advertising space on book search pages. Since books are bigger than articles, they will earn Google more money. Also, Google must have the entire book scanned into its database to engage in such searches. The writers worry that Google's complete "online publication" of the books will place the works in the public domain, depriving individual authors of the right to profit from their work.

The writers are seeking damages for violations already incurred and an injunction to stop future copyright infringements.

Google began the 10 year scanning project in December 2004. Progress was interrupted last August because the company suspended scanning copyrighted books. Google wanted to give authors and publishers until November 1, 2005 to compile lists of books they did not want scanned. While writers like this idea, they claim the method of identifying the books is unfair. Traditionally a person who wants to use copyrighted material must ask the author for their permission. Instead, Google has obligated the writers to tell it they do not want their books copied.

Google says writers are hurting themselves. It believes its library would help get books acknowledged by a wider audience. Publishing companies are mostly in favor of Google's project, holding database users will find and buy books more easily.

To fight the case, writers will likely rely on precedent set by New York Times Co. v. Tasini and Literary Works in Electronic Databases Copyright Litigation. In Tasini, the U.S. Supreme Court found in favor of a group of freelance authors who had written for the New York Times, Newsday, and Time Magazine. The publishers printed the authors' pieces in paper versions of their publications. The publishers then placed the articles in LexisNexis, an electronic database, without asking permission from the authors.

In Literary Works in Electronic Databases Copyright Litigation, the plaintiffs made similar claims against publishers for printing writers' freelance articles in their own electronic databases, such as CD collections of articles for sale. The parties reached a settlement agreement in 2005. The writers who suffered financial damages of copyright infringement will get paid certain amounts for each time an article was reprinted.

The writers in the case against Google may have an even stronger claim than did the writers in either of the above cases. Their action centers on books, not articles. The writers could assert that it is unforeseeable that libraries would agree to publish text from copies of books they owned in an online database.

A win for either side would be a complete victory. If the Authors Guild wins, Google would have to pay damages to so many claimants that it could not continue the project. In addition, other countries' courts could declare the injunction to have an international effect. If Google wins, all other writers would be barred from suing the company for the same reasons as the initial plaintiffs.

While an agreement could provide a middle ground, the Authors Guild terminated discussions this September. The Guild president, Nick Taylor, said authors, not Google, should decide how their works will be copied.