Google Library Project Class Action Settlement Leaves Copyright Infringement Question Unanswered

The Google Library Project involved digitizing millions of books provided by major libraries for online availability. Did Google, which did not acquire copyright licenses for the books before undertaking this ambitious project, engage in large-scale copyright infringement? It looks like this question will go unanswered. Google and representatives of a putative class that includes all of the authors and publishers affected by the Library Project have reached a proposed settlement of the matter. In this Analysis, Eric Bensen, author of Bensen & Myers on Litigation Management and co-author of Milgrim on Licensing and Milgrim on Trade Secrets, analyzes the settlement and discusses the decision to join in the settlement or to opt out altogether. He writes:
“Under the Settlement, Google would receive a nonexclusive license to continue digitizing Books and Inserts, to sell subscriptions to the digitized library, to sell digitized copies, and to engage in Display Uses and NonDisplay uses, all subject to a variety of restrictions. Display uses primarily include those described here.
“a. Access Uses: Viewing an entire book online and printing portions of it. Access Uses include, as defined by the Settlement, Institutional Subscriptions, Consumer Purchases, Public Access at Libraries and Elsewhere (for viewing at no charge and for printing on a fee per page basis) and Other Potential Commercial uses.
“b. Preview Uses: Permitting users to search (but not print) up to 20% of a book before making a purchase decision.
“c. Snippet Displays: Permitting users to review three or four lines of a Book.
 “Non-Display uses primarily include displaying bibliographic information, indexing and listing key terms.
 “By default, a Commercially Available (i.e., in print) Book will not be included in Display Uses unless the Rightsholder of the Book elects to have it included. Conversely, a Book not Commercially Available (i.e., out-of-print) will be included in the Display Uses unless the Rightsholder elects to have it excluded. Google's intent was to focus on making out-of-print books available through the Library Project. Accordingly, most Books and Inserts will fall outside the Commercially Available category. Google will make the initial determination as to whether a Book or Insert is commercially available.
“Interestingly, in the case of a Commercially Available Book, both the publisher and author must consent to the Book being included in Display Uses and either may request its removal. This appears to be the case even where the author has assigned its entire right, title and interest in the copyright to the publisher without contractual reservations, which, in the normal course, would preclude the author from having any right to control the publisher's use of the copyright.”
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