1. Do you think that Google should have taken a different approach that would have allowed it to avoid litigation and a lengthy delay in implementing its Book Search Library Project?Please explain your answer.

2. As a potential user, are you in favor of or do you oppose the Book Search Library Project?Please explain your answer.

3. Do you think that the proposed settlement gives Google an unfair advantage to profit from creating an online service that allows people to access and search millions of books?

In 2005, Google announced the Google Book Search Library Project, a highly ambitious plan to scan and digitize books from various libraries, including the New York Public Library and the libraries at Harvard University, Oxford University, Stanford University, and the University of Michigan. Google’s goal is to“work with publishers and libraries to create a comprehensive,searchable, virtual card catalog of all books in all languages that helps users discover new books and publishers discover new readers.”Because many of the books are protected under copyright law, Google needed a way to avoid problems with copyright infringement. Therefore, Google established a process requiring publishers and copyright holders to opt out of the program if they did not want their books to be searchable. Publishers and copyright holders were incensed and argued that they should con-trol who can view and search their books. In October 2005, the Authors Guild and the Association of American Publishers (on behalf of McGraw-Hill, Simon & Schuster, John Wiley & Sons,Pearson Education, and the Penguin Group) filed suit against Google to stop the program. They argued that making a full copy of a copyright-protected book does not fit into the narrow exception to the law defined by fair use.After more than two years of discussions, the parties negotiated a settlement in October 2008. The settlement did not resolve the legal dispute over whether Google’s project is permissible as a fair use; however, it concluded the litigation, enabling the parties to avoid the cost and risk of a trial.The proposed settlement would give Google the right to display up to 20 percent of a book online and to profit from it by selling access to all or part of it. Google would also sell subscriptions to its entire collection to universities and other institutions, but offer free portals to public libraries where users could pay a per-page fee to print parts of the book.In addition,Google would set aside $125 million to compensate authors and publishers for originally infringing on their copyrights, to pay the legal fees of the authors and publishers, and to establish a Book Rights Registry where rights holders can register their works to receive a share of ad revenue and digital book sales.Google, as well as many authors and publishers, defended the settlement, saying the project would benefit authors, publishers, and the public and renew access to millions of out-of-print books.However, in a further complication, the U.S. Department of Justice (DOJ) began an inquiry in April 2009 into the proposed settlement. In September, the DOJ urged the court to reject the settlement. The DOJ concluded that the settlement violated copyright, antitrust,and class action laws on three grounds. First, one goal of the settlement was to offer copy-righted materials to the public electronically while compensating copyright holders. However,the DOJ concluded that Google’s system did not require copyright owners to register.Moreover, the project includes many“orphan books”—those whose copyright holders are unknown or cannot be located. In addition, the DOJ argued that the settlement should result in a marketplace in which consumers have a choice of outlets from which they can obtain the access and in which prices are kept competitive. Finally, the DOJ harshly criticized the settlement because, as a class action, it failed to protect the rights of absent class members. The DOJ generally questioned whether a class action lawsuit was an appropriate method of dealing with the issues that arise from such a large-scale project to provide public electronic access to copyrighted material. A more appropriate venue, the DOJ suggested,would be the legislature.The parties in the case quickly responded by working out a new agreement. Through the revised agreement, Google’s book registry would actively seek out authors and rights holder sand Google would only scan books in English-speaking countries. In addition, the settlement limited ways that Google could make money from the project.In February 2010, however, the DOJ rejected the amended settlement for violating class action, antitrust, and copyright laws. The DOJ made specific suggestions to help avoid copyright infringement, such as arranging for authors to opt in rather than opt out and listing a book in the registry for two years prior to making it available online. But, from an antitrust perspective, the arrangement was still extremely problematic, the DOJ noted, as there are no serious competitors in the market. Amazon has approximately three million to Google’s tens of millions of books. This time the parties did not rush to develop a new agreement. Instead, New York Federal District Judge Denny Chin postponed a ruling on the agreement a few weeks later.The judge wanted to give all parties involved time to submit comments on the amended agreement. The court issued no ruling during 2010. Then in December 2010, Google launched its own online bookstore of eBooks. Of its over three million titles, only 200,000 had been licensed through publishers. The remaining 2.8 million were texts no longer covered by copyright law in the United States.