Google plans to seek Books lawsuit dismissal

The move may indicate that Google and the plaintiffs, including the Authors Guild, are giving up on a settlement

After a so-far fruitless three-year effort to settle the case, Google and the plaintiffs suing it for alleged book-related copyright infringement apparently are moving away from seeking a friendly solution.

Google has notified the court that it intends to file a motion to dismiss parts of the lawsuit filed against it by authors and publishers in 2005, in which they allege copyright infringement stemming from Google's wholesale scanning of millions of library books without the permission of copyright owners.

Google also told the U.S. District Court for the Southern District of New York that it will request as well the dismissal of a related case brought by photographers and illustrators in April 2010 objecting to the copying of their work as part of the library book scanning project.

Google stated its plan to seek the dismissals in a letter sent to Judge Denny Chin two weeks ago, and which the judge acknowledged receiving last week in a scheduling order he entered into the book-scanning case's docket.

In Chin's order, he states that Google requested a pre-motion conference prior to filing the requests for dismissal, but the judge responded that no such conference is necessary.

Instead, he set a deadline of Dec. 23 for Google to file the dismissal motions. The plaintiffs will have until Jan. 23 to respond to the motions, and Google will have to reply to the dismissal oppositions by Feb. 3, Chin wrote in the order.

When asked for comment, a Google representative said via email that the company told the court that it will seek dismissal of the claims "of some plaintiffs" and that it will "file a brief on that issue later this month."

The representative declined to be more specific, but the statement could mean that Google will request dismissal of the claims from the authors and from the photographers, but not from the publishers, with which Google is thought to have made more progress in settlement talks.

Although the claims are all closely related and usually addressed as a single action by those involved, there are technically three separate lawsuits in play, with the lead plaintiffs in each being the Authors Guild, the Association of American Publishers and the American Society of Media Photographers.

Exactly which plaintiffs and claims Google will challenge with its motions to dismiss will become clear at the latest by Dec. 23.

Google and the plaintiffs have been trying to settle the book-scanning case since 2008, when they hammered out a highly complex and controversial settlement agreement.

That agreement, which later went through a major revision, was nonetheless sharply criticized by many influential parties, including legal scholars, famous authors and publishers, and the U.S. Department of Justice, for their perception that it gave Google too much power over the scanned works and possibly violated copyright and antitrust laws.

In March, after reviewing it for more than a year, Judge Chin rejected the settlement proposal, saying in his decision that the agreement wasn't fair, adequate or reasonable. "While the digitization of books and the creation of a universal digital library would benefit many, the [proposed settlement] would simply go too far," he wrote then.

The settlement would have granted Google "significant rights to exploit entire books, without permission from copyright owners. Indeed, the [settlement] would grant Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case," he added.

The rejected settlement agreement would have given way to an ambitious plan by Google to build a massive marketplace and library for digital books. That proposal called for Google to pay US$125 million and in exchange obtain from the plaintiffs rights to display longer portions of in-copyright books.

In his 48-page decision rejecting the proposal, Judge Chin suggested that the parties would have a better chance of success with a settlement based on an "opt in" model for authors and publishers rather than "opt out."

Google and the plaintiffs went back to the drawing board, stating to the court at different times this year that they were working on revising the settlement proposal, but they have apparently come up empty so far. In the meantime, the judge in September set a pre-trial schedule in motion, should the settlement discussions fail to yield a revised proposal.

At that September hearing, it appeared that Google had made better progress in settlement talks with the publishers than with the authors, based on statements from a Google representative and from a Google attorney, as well as from industry sources close to the case who told IDG News Service that Google could end up striking a deal with the publishers and litigating with the authors.

The legal battle started in 2005 when the Authors Guild and the AAP sued Google, alleging copyright infringement from its program to scan millions of books from library collections without always getting permission from copyright owners.

That library scanning project, which Google launched in 2004, involves scanning the books and giving participating libraries digital copies, as well as storing copies on Google servers so that people can search them on the Google Books search engine.

Google defends the initiative as legal by arguing that it only shows snippets of texts in search results from copyrighted books it doesn't have permission to digitize. This, according to Google, is legal under the "fair use" doctrine, which allows for the reproduction of limited copyrighted material.

The plaintiffs allege that Google is violating copyright law because it has no right to copy books and store digitized copies on its servers without permission.

In another recent twist to the legal fight, the Authors Guild and other plaintiffs filed a copyright-infringement lawsuit in September against some of the universities participating in Google's library book scanning project.

The Authors Guild decision to open another battlefront against the library scanning project was interpreted by some observers as a sign that the possibility of a successful settlement had diminished.

Neither Google nor representatives from authors, publishers and photographers immediately responded to a request for comment.

Juan Carlos Perez covers search, social media, online advertising, e-commerce, web application development, enterprise cloud collaboration suites and general technology breaking news for The IDG News Service. Follow Juan on Twitter at @JuanCPerezIDG.

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Tags copyrightinternetGooglelegalsearch enginesintellectual propertyInternet-based applications and servicesAssociation of American PublishersAuthors Guild

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Juan Carlos Perez

IDG News Service
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