Blog Post

Google’s pain if it loses the book-scanning case? (hint: less than you think)

As the lawsuit over Google’s mass book-scanning moves to an endgame, news reports say the company may have to pay billions in copyright damages if it loses. These predictions, based on the Authors Guild’s decision to seek $750 per book, appear off the mark.

Even though Google (s goog) has scanned more than 20 million books, a closer look at the Authors Guild’s case shows that the number of writers eligible to receive any potential payout is a fraction of that number.

To get a better idea of what Google would have to pay, let’s take a closer look at that “20 million books” figure. First off, recall that most of these books are not covered by copyright at all. According to a court filing this week, Google has scanned a total eight million in-copyright English language books (the rest are presumably public domain or foreign language books not covered by the U.S. lawsuit).

This eight million figure can be whittled down by another 2.5 million titles due to Google’s Partner Program. Books in the program, which involves joint ventures between Google and dozens of publishers, are excluded from the lawsuit.

That leaves 5.5 million books. From this figure, it’s necessary to subtract all works published outside the U.S. since they are outside the scope of the lawsuit. To account for this, let’s knock off another half million books (a conservative estimate given the publishing output of the U.K., Canada, Australia and New Zealand).

This leaves five million books, which is still a huge number. But here’s the biggest kicker: to be eligible for a payout, the book must have been registered with the U.S. Copyright Office within three months of publication and the copyright must be owned by a natural person (not a corporation).

To appreciate the significance of this, it’s important to know that most books scanned by Google haven’t been registered with the Copyright Office. That’s because registration is unnecessary for copyright protection; it’s only needed as a formality to go to court (and, after 1978, to seek automatic statutory damages).

What all of this means is that the number of books at issue in the Authors Guild lawsuit is likely under one million – and that Google’s potential liability is nowhere near billions of dollars.

In response to an email inquiry, Michael Boni, lawyer for the Authors Guild, did not disclose how many books are covered but wrote:

“The class is limited to authors (and heirs) of timely registered U.S. works, meaning works that are eligible for statutory damages under the U.S. Copyright Act … [We] do not yet have a number, and this will be part of the remedial phase and claim process.”

(For more on copyright technicalities, see Lloyd Jassin’s helpful CopyLaw pages)

Here is the original certification order that describes who is eligble:

Google Class Cert Order

4 Responses to “Google’s pain if it loses the book-scanning case? (hint: less than you think)”

  1. D Traver Adolphus

    I have to say, as a writer I am fully in favor of Google’s scanning project. From my end this is not about money, but about access to written works. Good on yer, Google, fight on.

  2. My Post in 2009 on the number of Orphan titles: 580,388 Orphan Works – Give or Take

    “Clearly one of the most (if not the most) contentious issue regarding the Google Book Settlement (GBS) centers on the nebulous community of “orphans and orphan titles”. And yet, through the entirety of the discussion since the Google Book Settlement agreement was announced, no one has attempted to define how many orphans there really are. Allow me: 580,388. How do I know? ” Read on.

  3. David Thomas

    If your reductive math is correct, the question then becomes — why is Google spending so much money and time trying to hide behind fair use if the payments to copyright holders is comparatively small? My guess is that their model — to compete with Amazon — had it to “hold” titles for free, in the manner in which Amazon essentially “lists” titles and doesn’t have any real inventory of digital titles. Or their model could accommodate an open pay system with a million copyright holders. Both suppositions are pretty weak, though. The business plan from the start appeared to be “we’ll do all the scanning and build the library first on our own most favorable terms and work out the details legally while we’ve got it in place.”