May 8, 2012
Google asks judge if it can have fun and beat up authors one at a time instead of having to face them as a group where they actually have a chance, judge says probably not
by Dennis Johnson
The Google Book Search Settlement is back in court. Surely you remember the Google Book Search Settlement? — actually, it’s the settlement that wasn’t, but in case you’ve forgotten, here’s our story so far:
It started back in 2005, when Google was sued by essentially the entire book industry (or at least, the Association of American Publishers (AAP) and the Authors Guild (AG), but you can bet the membership of the American Booksellers Association and the American Library Association were rooting against Google) in an attempt to stop it from scanning tens of millions of books in defiance of copyright. To the sentient, it looked like what it was — an attempt by Google to privatize the country’s public libraries, while ripping off the authors and publishers who owned the copyrights of the scanned books. But Google went ahead and scanned some 20 million books anyway, and so in an attempt to make thin lemonade out of bitter lemons, the AAP, ALA, and AG drew up a settlement that looked an awful lot like surrender — until the agreement was, to everyone’s dismay, thrown out by federal Judge Denny Chin (see the MobyLives report).
That was in March of 2011. Now, Google is reportedly negotiating with the AAP and has asked Judge Chin to dismiss the Authors Guild from what’s left of the lawsuit. (Google also asked the judge to dismiss a lawsuit brought by the American Society of Media Photographers, who also claimed copyright infringement.) As a Reuters wire story by Grant McCool reports, Google declared that it should only have to deal with individual authors, not a group. But AG lawyer Joanne Zack noted told Judge Chin Google was an “intimidating defendant” for individual authors, and said, “This action does call out for a mass litigation to adjudicate the mass digitization.”
In a Businessweek report by Don Jeffrey, Zack also observes that “It would be a terrible burden on the court if each individual author was forced to litigate. A class action is superior.”
Google, meanwhile, made the bizarre argument that most writers don’t own their own copyright, no matter that the rights page of most books state rather exactly the opposite. But Google attorney Daralyn Durie told the judge that “Many authors contracted that right away to publishers.” According to the Businessweek report, “Google said in court papers that because the guild doesn’t claim to own the copyrights at issue, it can’t sue on behalf of authors.” None of the news reports explained how Google argued that although authors don’t own their own copyright and so can’t sue as a class action, they somehow have standing to sue as individuals, as Google prefers.
Judge Chin also seemed to think Google’s argument didn’t make a lot of sense, says an Associated Press wire story. It reports:
Chin did not immediately rule on what the law demands, but he questioned whether Google really wanted to face multiple lawsuits from authors and photographers.
“It would take forever. It just seems to make sense to address that on a group basis whether through an association or whether through a class action,” the judge said.
Dennis Johnson is the founder of MobyLives, and the co-founder and co-publisher of Melville House. Follow him on Twitter at @mobylives