Google Book Search Settlement: Ends, Means, and the Future of Books

Intellectual Property and Copyright and Trademark

Article Snapshot


James Grimmelmann


American Constitution Society Issue Brief, April 2009


This white paper analyzes the Google Book Search settlement and the orphan works issue.

Policy Relevance

The recent Google Books settlement creates a potential monopoly for Google that could be solved by legislative reinterpretation of copyright law.

Main Points

  • Google Books is an online collection of scanned books which users can search using Google.  These searches pull up short clips of the books, while the majority of the book remains blocked, but can be bought in digital form by the user.
  • A class action lawsuit was filed on behalf of all copyright holders against Google, challenging Google’s initial scanning of the books as well as their subsequent use as part of the Google Books database.
  • A settlement was proposed that would allow Google Books to scan and use all copyrighted work on several conditions.

    • Owners of the copyrighted work could opt-out of the arrangement, preventing Google from showing the content online.
    • Copyright holders would be entitled to proceeds from sales through Google as well as a portion of the ad revenue generated from the published content.
    • A new non-profit, Book Rights Registry, would collect the payments due to copyright owners, and distribute it.
  • This settlement has several serious implications for copyright law and for consumers:

    • This is a Google only deal, meaning that there are no potential competitors, and, if such a competitor wanted to enter the market, they could be sued by millions of individual copyright owners.
    • The settlement also fails to set out any privacy restrictions for users of Google Books, meaning that Google’s new online library can monitor what everyone reads.
    • The settlement also substantially changes copyright law, at least for Google, as it allows them a presumption of permission to use copyrighted works.
  • “Orphaned Books” are those which are still under copyright, but who have no ascertainable copyright owner.  These books are, under normal copyright law, unusable.  Under the Google Books settlement, Google will now have the right to use these orphaned books until the copyright holder comes forward.
  • This settlement is a judicial solution to what is really a legislative problem.  A better solution, which could fix many of the potential problems in the settlement, would be for the federal legislature to grant a fair use right, similar to what Google is now allowed by the settlement, to all online publishers.

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