Major Book Publishers Sue Google for Digitizing Copyrighted Books

October 19, 2005. Five book publishing companies filed a complaint [35 pages in PDF] in U.S. District Court (SDNY) against Google alleging that its Google Print Library Project infringes copyrights.

The plaintiffs are McGraw Hill, Pearson Education, Penguin, Simon & Schuster, and John Wiley & Sons. All are members of the Association of American Publishers (AAP).

In a related matter, on September 20, 2005, the Author's Guild and others filed a similar complaint in the same District Court against Google alleging copyright infringement in connection with the same Google project. The plaintiffs in that action seek class action status. See, story titled "Author's Guild Sues Google for Copyright Infringement" in TLJ Daily E-Mail Alert No. 1,218, September 21, 2005. See also, story titled "University Publishers Accuse Google of Systematic Infringement of Copyright on a Massive Scale" in TLJ Daily E-Mail Alert No. 1,142, May 25, 2005.

The plaintiffs in the present action also attach as an exhibit to the complaint a 17 page list of copyrighted works, along with their authors, copyright registration numbers, and publishers, that Google may have infringed.

The complaint names only one defendant, Google. It does not name any of the five libraries that have agreed to allow Google to scan books in their collections. The complaint does state that two of the libraries (Oxford and the New York Public Library) have stated that they will allow Google to scan only those works that are in the public domain. The complaint states that two others (Harvard and Stanford) have not stated clearly what they plan to do. Finally, the complaint states that the University of Michigan has stated that it will make available all books, including those under copyright. The complaint does not name Michigan as a party, or otherwise assert vicarious infringement by Michigan.

The one count complaint alleges copyright infringement, and seeks a declaration that Google has infringed copyrights, injunctive relief, costs and attorneys fees. It does not seek damages.

More specifically, the plaintiffs seek "A Final Order that permanently enjoins Google from, in any manner, reproducing, publicly distributing and/or publicly displaying all or any part of any Publisher's copyrighted works as port of the Google Library Project, or otherwise, except upon the express prior authorization of the Publisher owning or controlling the copyrights in such works."

They further seek "An Order that requires Google to delete or otherwise destroy all unauthorized copies made by Google through the Google Library Project of any copyrighted works, whether in whole or in part, owned by Publishers (a) from any computers or web servers owned by Google or that are under its control, or (b) that are otherwise in the possession of Google."

The complaint states that "Publishers bring this action to prevent the continuing, irreparable and imminent harm that Publishers are suffering, will continue to suffer and expect to suffer due to Google's willful infringement, to further its own commercial purposes, of the exclusive rights of copyright that Publishers enjoy in various books housed in, among others, the collection of the University Library of the University of Michigan ... "

The complaint further alleges that "Using the rubric of a ``Google Library Project, Google has announced that it has begun and will continue a commercial program under which it will digitally scan, or copy, the entirety of each of the books supplied to it by Michigan, without regard to whether (a) any or all of those books are protected by copyright and (b) any of the Publishers (or any other publisher or owner of copyright, for that matter) consents to having its copyrighted books included in the project)." (Parentheses in original.)

The complaint continues that Google "proposes to make a digital copy of each book that it scans and then provide that copy to Michigan for Michigan's own use. Google also proposes to (a) store, in perpetuity, one or more of the resulting digital copies on Google's computer servers, (b) offer to the public the ability to search, and have access to, the copies of the books stored on Google's servers and to retrieve excerpts of those books and (c) publicly display excerpts of the books to any person in the world whose search, through Google, has retrieved that book. All of these steps are taken by Google for the purpose of increasing the number of visitors to the website and, in turn, Google's already substantial advertising revenue."

The complaint alleges that Google's project is "entirely commercial". It further anticipates that Google will plead the affirmative defense of fair use. It states that "Neither (a) the fair use provisions of 17 U.S.C. 107 nor (b) the narrow provisions of 17 U.S.C. 108, which in very different circumstances would allow a library but, in no event, Google, to make digital copies of these works in a library's collection, excuse Google's wholesale unauthorized copying." (Hyperlinks added.)

Patricia Schroeder, President of the AAP, stated in a release that "The publishing industry is united behind this lawsuit against Google and united in the fight to defend their rights ... While authors and publishers know how useful Google's search engine can be and think the Print Library could be an excellent resource, the bottom line is that under its current plan Google is seeking to make millions of dollars by freeloading on the talent and property of authors and publishers."

Schroeder is a former member the House of Representatives. She represented a Colorado district, and at the end of her House career, was the ranking Democrat on the House Judiciary Committee's Subcommittee on Courts and Intellectual Property.

Gigi Sohn, President of the Public Knowledge, stated in a release that "The publishers' suit against Google is truly unfortunate and short-sighted. Those who produce books should be heartened to see a project that has as its goal the legal distribution of knowledge and insight. The publishers also stand to gain increased exposure for their books. Instead, they are taking to court a program that would only fully digitize public-domain work and would give readers only a glimpse of copyrighted material. That Google project falls squarely within the boundaries of fair use, and the publishers should recognize that."

Public Knowledge is a Washington DC based interest group that advocates the weakening of intellectual property rights protection, especially in copyright.

The plaintiffs are represented by Bruce Keller of the New York City office of the law firm of Debevoise & Plimpton.

This case is McGraw Hill Companies, Inc., Pearson Education, Inc., Penguin Group (USA) Inc., Simon & Schuster, Inc. and John Wiley & Sons, Inc. v. Google Inc., U.S. District Court for the Southern District of New York, D.C. No. 05-CV-8881.