The Authors Guild is seeking class-certification status for its claims case in order to represent all copyright holders in the U.S whose books have been scanned by Google as part of its Library Project. Around 20 million books have already been digitized by Google since the project started in 2004, and the guild is seeking minimum statutory damages for the authors it wants to represent.
The case brought by the authors was filed in 2005 and is one of three separate lawsuits tied to Google's book-scanning program. Groups representing publishers and photographers also claim that Google has infringed copyrights via the Library program, in which digital copies of scanned public domain and in-copyright books from participating libraries are stored on Google servers and are searchable via its search engine. Google presents only snippets of in-copyright books, while public-domain books are fully accessible.
Google is asking the court to dismiss the authors' case, saying the group does not represent the copyrights owned by individual authors or publishers. Google maintains that it is not violating copyright law, and that its actions are protected by the "fair use" principle, which allows for reproduction of limited copyrighted material without permission.
The authors filed a document requesting class-action certification in December last year after a proposed settlement between Google and the authors and publishers was rejected by the judge earlier in the year.
There is no fair-use issue at stake in the case, said Joanne Zack, a lawyer at Boni and Zack, representing The Authors Guild, when arguing about the class-action motion in court on Thursday.
"Google engaged in a campaign that affected millions of authors," Zack said.
Calling Google "intimidating," Zack also said that asking individual authors to individually litigate Google is unfair. She said a class-action status is a fair procedural route and economical way to represent the rights of the authors.
Representing Google, Daralyn Durie of law firm Durie Tangri argued that a class-action status for the group could have "far-reaching implication" on copyright laws. She also said Google's displaying snippets could advance sales of books, which could in fact benefit authors. Durie also pointed out that the issue of author ownership is murky, as some copyrights are held by publishers.
There is an overlap in the class-action and dismissal claims revolving around the ownership of works, noted the presiding judge, Denny Chin of the U.S. District Court for the Southern District of New York. He said he will make decisions on the motions at a later date, but gave no timetable.
The Authors Guild and the Association of American Publishers filed a case against Google in 2005, and Google reached a settlement agreement with the authors and publishers October 2008. Under the settlement, Google would pay US$125 million to obtain rights to display snippets of in-copyright books and provide full online access through individual purchases or subscriptions. The settlement also called for the creation of a Book Rights Registry, an independent nonprofit entity that would locate copyright owners and compensate authors and publishers for access to their works.
The proposed settlement was amended, but was rejected in March last year by Chin who said it was not fair or reasonable because it would have given Google the rights to full books without explicit permission from copyright owners. Some arguments against the settlement proposal also revolved around the possibility of giving Google too much control over "orphan works," whose copyright owners can't be located and which are often out of print.
Orphan works also came up in the arguments on Thursday, tied to Google's request to dismiss the case. Google's lawyer said the contract and copyright status of many out-of-print works are unclear.
In September, Google and the representatives for authors and publishers they would like to continue discussions on a revised settlement. A Google spokeswoman Thursday declined to comment on whether negotiations were going on between the company and authors or the American Society of Media Photographers, which represents the photographers. Negotiations with the publishers are ongoing, the spokeswoman said.
Participants in the Google Books Library Project include some of the .