[SPICY IP] Google Book Settlement- Indian Government Protests...Finally

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J. Sai Deepak

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Nov 15, 2009, 2:04:32 PM11/15/09

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“Don’t Be Evil” apparently is the unofficial slogan of Google; though it isn’t clear if this Hammurabic finger-wagging precept is Google’s pearl of wisdom to the rest of the world or if it is directed inwards to monitor itself... (by the way, for those who may be interested in tracing the origins of the expression “wagging the finger”, check this out). Anyways, most IP aficionados would be aware of the raging controversy surrounding the Google Books Settlement; for others, here’s a site which gives a bird’s eye view of the details and updates pertaining to the Settlement.

The Settlement is an agreement reached between Google, Authors Guild (AG) and the Association of American Publishers (AAP) in the Southern District Court of New York in the US after a class action lawsuit was filed by AG and the AAP in 2005. The suit alleged copyright infringement by Google which sought to digitize copyrighted works for commercial use under its Library Project. Subsequently, another suit for injunctive relief was filed by the AAP in 2005.

Last October, Google signed the Settlement with the Author’s Guild for $125 million of which $34.4 million is earmarked for funding the setting up of Book Rights Registry (BRR), a copyright society which would administer the distribution of profits made by Google to right owners. The site hyperlinked in the first para of this post is maintained by Google to enable authors to submit their claims under the Settlement. Under this Settlement, right owners would receive a one-time payment $60 per full book, $5-15 for partial works, in addition to 63% of revenues earned from e-commerce and advertising.

This was the earlier version of the Settlement which drew flak from across the board cutting boundaries, with prominent voices from China and Germany. An alliance, called the Open Book Alliance (OBA), was formed by interest groups to counter, what they call, “a scheme to monopolize access, distribution and pricing the largest digital database of books in the world”. Among the other things that the OBA demanded, it proposed a revision to the Settlement incorporating the requirements, which it calls the baseline requirements:

1. The settlement must not grant Google an exclusive set of rights (de facto or otherwise) or result in any one entity gaining control over access to and distribution of the world’s largest digital database of books.
2. Authors and other rights holders must retain meaningful rights and the ability to determine the use of their works that have been scanned by Google.
3. The settlement must result in the creation of a true digital library that grants all researchers and users, commercial and non-commercial, full access that guarantees the ability to innovate on the knowledge it contains.
4. All class members must be treated equitably.
5. The settlement cannot provide for competition by making others engage in future litigation.
6. Congress must retain the exclusive authority granted by the U.S. Constitution to set copyright policy.
7. All rights holders impacted by the settlement must have a meaningful ability to receive notice, understand its terms and opt-out.
8. The parties that negotiated the settlement must live under the terms to which they seek to bind others, rather than their own separately negotiated arrangements.

Following this, Google released the Revised Settlement Agreement on November 9th which was filed before the Court last Friday, the 13th.

The Indian Government, through the Ministry of Commerce and Industry, finally expressed its concerns on the Settlement to United States Trade Representative (USTR) team led by Ron Kirk. India’s concerns stem from the fact that the Settlement under the earlier version was applicable to any person who has a US copyright interest. Also, what this Settlement bodes for vernacular authors and publishers is something which must be of critical concern to the Indian government.

Though I haven’t read the Revised Settlement (which runs into a good 170 pages...which still is light reading compared to the famed Keshavananda Bharati judgment), if news reports are to be believed, the Settlement in its new avatar applies only to books published in English-speaking countries such as the US, UK and Australia (by English-speaking countries, does the Settlement refer only to those countries where English is the native tongue?)

Apparently, concerns of competitors over sale of the same books that are digitized by Google, and sale of books whose copyright holder couldn’t be determined (“orphan books”) too have been addressed in the new Settlement.