The Authors Guild, Inc. et al. v. Google, Inc., 1:05-cv-08136-DC (S.D.N.Y.), began almost 7 years ago when Google’s “Library Project” results were first available online. The lawsuit has just entered a new stage which you would expect at the beginning–a motion for class certification.
According to the motion, Google has now copied over 12 million off-line books. The project has been described as an effort to make any book in the world available in response to a Google search.
Google has justified the massive copying on various grounds, especially that it is fair use under the Copyright Act which protects copying by libraries under certain circumstances. 17 U.S.C. 108. The Authors Guild and other critics have argued that the project is not a fair use but a component in Google’s dominance of internet search engines which has produced one of the most profitable companies in America.
After a lengthy settlement process was rejected by the court, the litigants are almost back to square one with the certification motion and Google reportedly taking depositions starting December 15. A motion to dismiss is anticipated this month, and among the expected arguments is that the named plaintiffs and Authors Guild are not adequate representatives of a class composed of hundreds of thousands if not millions of authors or their heirs.
It is hard to overstate the complexity of the practical issues of the Library Project compared to something like the much smaller universe of recorded music licensing issues faced by an iTunes or Spotify. A comparatively tiny number of rights holders is capable of granting licenses for a vast portion of the catalogue that people will pay for. And there are established, quasi-public performing rights organizations and agencies of the federal government collecting and disbursing categories of royalties to rights holders.
In contrast, Google estimated last year that 130,000,000 books have been created throughout history. From that perspective, the Library Project is in its infancy. The class certification motion suggests that the litigation is in its infancy too. But no matter how the practical issues are resolved, the hard reality will endure that rights owners will only have rights if they have the ability to enforce them.