Google Argues Authors Want Book Scanning Project to Continue

Amidst the simmering online piracy debate, Google tossed an attention-getting brief last Wednesday opposing class certification into the lawsuit aimed at stopping its Google Books Project. The Authors Guild Inc., et al. v. Google, Inc., Civ. Action No. 05 CV 8136, Doc. 1000 (SDNY). The project is the famous effort begun in 2004 to scan “every word of every book ever written.” The heart of the argument is that 58% of 880 authors surveyed want Google to keep on keepin’ on.

The survey is used to argue that a substantial percentage of the purported class has economic interests in conflict with the positions of the plaintiffs who seek to be class representatives. Also citing fact questions on the different circumstances of different kinds of authors, Google wants all copyright infringement claims based on the Books Project to be filed as individual lawsuits. The argument is a template that could be used to oppose class action lawsuits based on copyright infringement claims for virtually any other kind of creative work outside of publishing.

If individual authors qualify to participate, but are not satisfied with, Google’s takedown procedure which it calls “exclusion,” the thoughts in the January 31 post here “Lessons for Online Piracy Legislation from Comments on Copyright Small Claims” come into play. The percentage of those authors who can find a way to wage copyright infringement litigation against Google cannot be very large.

The numbers involved in the Book Project, however, are large. The brief says Google has scanned more than 20 million books so far, and 4 million are available for research that will produce “snippet view” results. The snippets are about an eighth of a page of the book in question, and no more than 3 snippet views are said to be returned as search results. Snippet views might include a thumbnail image of the book’s cover and “get book” information in the form of links to online booksellers with prices along with lending library information.

Google claims that many authors see snippet views as valuable, maybe the only, advertising for their works–and that is easy to believe. It also says no snippets are shown for reference works because the snippets might be all the searcher would want and the Books Project wants to be a way to find books, not a substitute for them.

The brief also describes the Google Partner Program with more than 45,000 publishers and 2.5 million books. Participation in the program means search results with full page displays, and apparently no takedown powers for authors whose publishers participate. By Google’s numbers, that still leaves at least 1.5 million works by non-Partner Program authors with snippet views returnable today, and about 16 million scanned works not discussed at all. Perhaps the plaintiffs will talk about them.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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