The Guild is suing its former partner for scanning books without permission while a group representing photographers is also appearing before Chin to press copyright claims of its own.
At today’s hearing the Authors Guild is set to ask Chin to confirm that the country’s writers can sue together. Google is opposing the request while also seeking to throw out the Authors Guild and photographers’ complaints altogether.
According to Google, the Authors Guild doesn’t have standing to sue because it’s an association — the search giant says individual writers who own copyrights should bring the case instead. The Guild says it’s the logical group to represent authors who need its institutional muscle.
Google also says there should be no class action to begin with because of the divergent interests among the writer whose books were scanned. It argues, for instance, that many writers like the scanning program and that they shouldn’t be included in the collective lawsuit.
“The ultimate question is who owns the rights to display a small excerpt of the work,” Daralyn Durie, a lawyer for Google, told the judge today. “Many authors contracted that right away to publishers.”
In the bigger picture, the case is unlikely to go anywhere fast. Google and its ace lawyer Durie have the resources to keep it bottled up in preliminary issues for the foreseeable future. Meanwhile, Judge Chin is now overseeing the case as a special matter in addition to his duties on the Second Circuit Court of Appeals where he now sits. At earlier hearings, Chin has indicated that he would like the parties to settle.
At the same time, the larger world of online books has changed dramatically in the last two years. In early 2010, when the parties gathered before Chin in a ballyhooed hearing, critics claimed Google would dominate the online book market. Today, all eyes are instead on dominant Amazon and Apple. The latter indicated it wants to remake the textbook market and is also tangling with the Justice Department over price-fixing allegations.
The Google Books Settlement was originally a three part deal between Google, the Authors Guild and publishers that would have paid writers a flat fee and also given them advertising and royalty revenues.
After Chin rejected the settlement, the Guild and the publishers revived their original lawsuits from 2005. The publishers, however, have quietly been dropping out of the proceedings to obtain bilateral deals with Google.
Google has by now reportedly scanned 20 million books, most of which remain largely locked up.
While the Google case plods along, scholars like Berkeley’s Pamela Samuelson are calling for Congress to fix copyright law in order to create a Digital Public Library of America.
Judge Chin said he will rule later on today’s motions. He also said Google and the Author’s Guild could move for judgment without a trial and he would hear oral motions in September.