Did Google settle too soon in book-scanning case?

Seven years is a long time to be fighting a lawsuit with potentially huge damages at the end of it should you lose. So it was hard to blame Google last week for finally settling the copyright infringement case brought against it by the Association of American Publishers over its book-scanning project even on terms that appear to accept the publishers’ legal position. But the folks in Google’s legal department have to be kicking themselves a little bit after this week’s ruling in a separate but related case declaring Google’s digitizing of print books to be completely legal and in some cases even compulsory.

U.S. District Judge Harold Baer on Wednesday dismissed an infringement suit brought by the Authors Guild and other authors’ groups against four university libraries for digitizing their collections and placing them in the HathiTrust Digital Library. Google was performing the actual scanning under a a deal struck with the universities in 2005 but was not named as a defendant in the case.

According to Judge Baer, the law is almost entirely on the universities’ side, particularly the fair use doctrine. “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact,” Baer wrote. “I cannot imagine a definition of fair use that would not encompass the transformative uses made by defendants.”

The judge noted some of the universities may even have been required to digitize their library collections in order to accommodate the print-disabled under the Americans With Disabilities Act.

Google had raised a fair use defense in the case brought against it by the publishers and the Authors Guild. By settling with the publishers, however, Google in effect conceded there was indeed a “genuine issue of material fact” with respect to fair use that needed to be accommodated. Although details of the settlement terms have not been released, the parties said in a joint statement, “The settlement acknowledges the rights and interests of copyright-holders. U.S. publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project.”

Not so in Judge Baer’s court.