University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name The Authors Guild v. Google, Inc. DR-NY-0006
Docket / Court 1:05-cv-08136-DC ( S.D.N.Y. )
State/Territory New York
Case Type(s) Disability Rights-Pub. Accom.
Case Summary
In 2004, Google and several major universities announced a project to scan and digitize the collections of the universities' research libraries. Google has since scanned more than 12 million books. The libraries retained digital copies of the books (see Authors Guild v. HathiTrust, in related cases) ... read more >
In 2004, Google and several major universities announced a project to scan and digitize the collections of the universities' research libraries. Google has since scanned more than 12 million books. The libraries retained digital copies of the books (see Authors Guild v. HathiTrust, in related cases). Google also kept copies of the books, which it added to its Google Books database. The content of these books was made available for online searching, with the full content of out-of-copyright works made available online, and with copyrighted works searchable, but visible to users only in "snippets" showing the search terms in context.

Millions of the books scanned by Google were under copyright and Google did not obtain permission to scan the books from the Rightsholders. In 2005, the Authors Guild, together with several national and international organizations purporting to represent the interest of authors and publishers, as well as certain authors and publishers, brought a class action lawsuit against Google. The suit was filed in the United States District Court for the Southern District of New York, alleging copyright infringement. The authors sought both damages and injunctive relief, and the publishers sought injunctive relief. Google's principal defense was fair use under § 107 of the Copyright Act, 17 U.S.C. § 107. The case is included in the Clearinghouse because the proposed settlement agreement makes significant accommodations allowing access to the digitized works by blind or otherwise print-disabled individuals, and because important disability advocacy groups expressed their support of the settlement.

In the fall of 2006 the parties began settlement negotiations, and on October 28, 2008 the parties filed a proposed settlement agreement. Preliminary approval of the proposed settlement was granted by Judge John E. Sprizzo on November 17, 2008. Hundreds of objections were received in response to the proposed settlement, and so the parties reentered discussions for possible modifications to the proposed settlement. On November 13, 2009, the parties filed an Amended Settlement Agreement. The Court, (Judge Denny Chin) granted preliminary approval to the Amended Settlement on November 19, 2009. Authors Guild v. Google, Inc., 2009 WL 5576331 (S.D.N.Y 2009).

The Amended Settlement Agreement was 166 pages long, not including attachments. The Class addressed by the settlement consisted of all persons who, as of January 5, 2009, owned a U.S. copyright interest in one or more books implicated by a use authorized by the Amended Settlement Agreement. There were two subclasses, the Author Sub-Class and the Publisher Sub-Class. Under the Amended Settlement, Google would be authorized to continue digitizing books, and to beginning selling subscriptions to an electronic book database, to sell online access to individual books, and to sell advertising which would be placed on pages from books. The rights granted to Google in the settlement would be non-exclusive.

Rightsholders could exclude their books from some or all of the uses listed above, or elect to remove their books from the database completely. Rightsholders could also demand that Google not digitize any of their books not yet digitized. Under the settlement Google would establish a Registry which would be required to make a reasonable effort to locate Rightsholders. The Registry would receive payments from Google on behalf of Rightsholders and would in turn distribute funds to registered Rightsholders. Unclaimed funds would, after five years, be used to cover the expense of locating owners of unclaimed works, and after ten years, any additional unclaimed funds would be distributed to literary charities. Under the settlement, Google would not display in-print books unless it received express authorization from the Rightsholders, however the agreement would grant Google the right to make non-display use of in-print books, including making the content of books searchable by Google Books users. The agreement would have allowed Google to display out-of-print books until they received a request from the Rightsholder directing them to stop.

The Amended Settlement Agreement would have granted special access to academic and public libraries wishing to participate. Google would provide the library a digital copy of any book in the library's collection, either by scanning the library's copy or by giving them access to a copy of the title already in Google's database. The participating libraries would make these digital copies of their collections available to blind patrons and those with other print disabilities. In addition, certain other rights would have been granted to participating libraries under the Amended Settlement Agreement. The Amended Settlement would also have required Google to ensure that the books made available through its own services would be provided in formats accessible to people with print disabilities.

The Court received approximately 500 submissions commenting on the settlement, the overwhelming majority objecting to it. Additionally, around 6800 class members opted out. The major arguments of the objectors were that: the proposed class notice was inadequate; that the interests of certain class members including foreign authors and academic authors were inadequately represented by the representative plaintiffs; that the settlement terms were overly broad, reaching issues not within the scope of the pleadings, and releasing future claims not before the court; that the settlement was at odds with federal copyright law and that it functioned to make Google the de facto copyright holder for "orphaned works"; antitrust concerns, including that the settlement would effectively give Google a monopoly over digital books and especially over unclaimed works (while its competitors, who had been carefully obtaining permission to digitize each work rather than copying everything without authorization would be pushed out), that the proposed pricing mechanisms violated the Sherman Act, and that the settlement would unfairly entrench Google's position as the dominant online search engine; privacy concerns about Google's ability to monitor the reading patterns of users, and about its use of information provided by Rightsholders; and concerns that settlement was at odds with international law and that it placed an unfair burden on foreign copyright holders.

Among the relatively few submissions from supporters of the settlement were letters from the National Federation of the Blind (the NFB) and from the American Association of People with Disabilities. The NFB argued in its letter that the settlement should be allowed to proceed because of its terms granting access and accommodations for disabled users. The settlement would for the first time make almost all books in the collections of public libraries accessible to blind readers and to an estimated another 30,000,000 Americans unable to read printed text due to other disabilities.

The NFB would later become an intervening defendant in Authors Guild v. HathiTrust (see related cases), which was the suit filed by The Authors Guild against the academic libraries that were Google's original partners in the book scanning project. That suit was decided on its merits in favor of the defendants, with the court finding that the libraries' use of the digitized works was permissible under the fair use provisions of the Copyright Act and that to the extent that digitization provided a unique degree of access to information for the blind and to individuals with other print disabilities, such digitization was allowed under the ADA.

The Court (Judge Denny Chin) shared many of the objectors' concerns, and so in an extensive opinion dated March 22, 2011, it rejected the Amended Settlement Agreement, stipulating that it would likely approve a second amended settlement if the parties modified it so that it was an opt-in, rather than an opt-out, agreement. The opinion does not address the merits of the NFB's arguments in favor of the settlement. Authors Guild v. Google, Inc. 770 F.Supp.2d 666 (S.D.N.Y. 2011).

The parties appear to have decided against an opt-in settlement, and it seems likely that the case will proceed and will eventually be decided on its merits. On October 14, 2011, the plaintiffs filed a Fourth Amended Complaint, which appears substantially similar to the earlier complaints, except with minor rewording and with the substitution of certain named plaintiffs.

On May 31, 2012, the Judge Chin denied a motion by Google to have the claims of the associational plaintiffs (The Authors Guild and other non-individual plaintiffs) dismissed. In the same decision, the court granted class certification to the plaintiffs. Authors Guild v. Google, Inc., 282 F.R.D. 384 (S.D.N.Y. 2012). Google filed an appeal to the United States Court of Appeals (USCA) for the Second Circuit, contesting the grant of class certification. Proceedings in the District Court were stayed pending the outcome of this appeal.

On July 1, 2013, the USCA for the Second Circuit vacated the District Court's order on the grounds that class certification was premature in the absence of a determination of the merits of Google's "fair use" defense. The case was remanded without prejudice to any renewal of the motion for class certification.

On November 14, 2013, the District Court (Judge Chin) granted Google's motion for summary judgment. Judge Chin found that Google's actions were protected by fair use. It was noted that Google's actions brought significant public benefits including enabling libraries to make copies available to print-disabled individuals. The plaintiff's complaint was dismissed with prejudice.

On December 23, 2014, the plaintiffs appealed to the Second Circuit Court of Appeals.

Alex Colbert-Taylor - 06/18/2013
David Cho - 12/29/2014


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Issues and Causes of Action
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Issues
Disability
Visual impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Screen readers and similar accessibility devices
Website
Plaintiff Type
Private Plaintiff
Causes of Action None on record
Defendant(s) Google, Inc.
Plaintiff Description The Authors Guild and other national and international organizations claiming to represent the interests of authors and publishers, alleging that the defendant Google violated the Copyright Act by scanning and making available millions of copyrighted works. The case is listed in the Clearinghouse because the proposed settlement would make many of these works available to blind and visually impaired users.
Indexed Lawyer Organizations None on record
Class action status sought Yes
Class action status granted Moot
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief Litigation
None
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Case Listing DR-NY-0004 : The Authors Guild v. HathiTrust, Inc. (S.D.N.Y.)
Docket(s)
1:05-cv-08136-DC (S.D.N.Y.) 12/23/2013
DR-NY-0006-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint, Jury Trial Demanded 09/20/2005
DR-NY-0006-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Declaration of Michael J. Boni in Support of Plaintiffs' Motion for Preliminary Settlement Approval 10/28/2008
DR-NY-0006-0003.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
[Proposed] Order Granting Preliminary Settlement Approval 11/17/2008 (S.D.N.Y.)
DR-NY-0006-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Letter on behalf of American Assoc. for People with Disabilities 08/05/2009
DR-NY-0006-0005.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order 09/16/2009 (S.D.N.Y.)
DR-NY-0006-0006.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Statement of Interest of the United States of America Regarding Proposed Class Settlement 09/18/2009
DR-NY-0006-0007.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum Decision 11/04/2009 (2009 WL 3617732) (S.D.N.Y.)
DR-NY-0006-0008.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Amended Preliminary Settlement Agreement 11/13/2009
DR-NY-0006-0001.pdf | Detail
Document Source: Plaintiffs' counsel
Order Granting Preliminary Approval of Amended Settlement Agreement 11/19/2009 (2009 WL 5576331) (S.D.N.Y.)
DR-NY-0006-0009.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Memorandum Decision 12/01/2009 (2009 WL 4434586) (S.D.N.Y.)
DR-NY-0006-0010.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Letter from National Federation of the Blind 01/28/2010
DR-NY-0006-0011.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion 03/22/2011 (770 F.Supp.2d 666) (S.D.N.Y.)
DR-NY-0006-0012.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Fourth Amended Class Action Complaint, Jury Trial Demanded 10/14/2011
DR-NY-0006-0014.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Authors Guild v. Google - Opinion 05/31/2012 (282 F.R.D. 384) (S.D.N.Y.)
DR-NY-0006-0015.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Granting Plaintiff's Motion for Class Certification 06/11/2012 (S.D.N.Y.)
DR-NY-0006-0016.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order of USCA regarding Class Certification 07/01/2013 (721 F.3d 132)
DR-NY-0006-0017.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion Granting Motion for Summary Judgment of Defendant 11/14/2013 (954 F.Supp.2d 282) (S.D.N.Y.)
DR-NY-0006-0018.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Cabranes, Jose Alberto (Second Circuit, D. Conn., FISCR)
DR-NY-0006-0017
Chin, Denny (S.D.N.Y., Second Circuit)
DR-NY-0006-0006 | DR-NY-0006-0008 | DR-NY-0006-0009 | DR-NY-0006-0010 | DR-NY-0006-0012 | DR-NY-0006-0015 | DR-NY-0006-0016 | DR-NY-0006-0018 | DR-NY-0006-9000
Leval, Pierre Nelson (S.D.N.Y., Second Circuit)
DR-NY-0006-0017
Parker, Barrington Daniels Jr. (S.D.N.Y., Second Circuit)
DR-NY-0006-0017
Sprizzo, John Emilio (S.D.N.Y.)
DR-NY-0006-0004
Monitors/Masters None on record
Plaintiff's Lawyers Boni, Michael J (Pennsylvania)
DR-NY-0006-0001 | DR-NY-0006-0002 | DR-NY-0006-0003 | DR-NY-0006-0007 | DR-NY-0006-0012 | DR-NY-0006-0014 | DR-NY-0006-9000
Cunard, Jeffrey Paul (New York)
DR-NY-0006-0001 | DR-NY-0006-0007 | DR-NY-0006-0012 | DR-NY-0006-9000
Dumain, Sanford P (New York)
DR-NY-0006-0002 | DR-NY-0006-0014 | DR-NY-0006-9000
Keller, Bruce P (New York)
DR-NY-0006-0001 | DR-NY-0006-0012 | DR-NY-0006-9000
Kohn, William Irwin (Ohio)
DR-NY-0006-9000
Larocca, Robert J (Pennsylvania)
DR-NY-0006-0014 | DR-NY-0006-9000
Neuman, Kristin Heckett (New York)
DR-NY-0006-9000
Reznick, Kate (Pennsylvania)
DR-NY-0006-0002
Zack, Joanne E (Pennsylvania)
DR-NY-0006-0001 | DR-NY-0006-0012 | DR-NY-0006-0014 | DR-NY-0006-9000
Defendant's Lawyers Beck, Joseph M (Georgia)
DR-NY-0006-9000
Bernstein, Robert Jay (New York)
DR-NY-0006-9000
Charnes, Adam Howard (North Carolina)
DR-NY-0006-9000
Conciatori, Jeffrey A (New York)
DR-NY-0006-9000
Drummond, David C (California)
DR-NY-0006-0001
Durie, Daralyn J. (California)
DR-NY-0006-0007 | DR-NY-0006-0012 | DR-NY-0006-9000
Fonoroff, Alex Seth (Georgia)
DR-NY-0006-9000
Gratz, Joseph C (California)
DR-NY-0006-0012 | DR-NY-0006-9000
McGowan, David Floyd (California)
DR-NY-0006-9000
Miksch, Melissa J (California)
DR-NY-0006-9000
Raider, Ronald Lee (Georgia)
DR-NY-0006-9000
Rosloff, Genevieve P (California)
DR-NY-0006-9000
Silbert, David J (California)
DR-NY-0006-9000
Other Lawyers Arato, Cynthia S (New York)
DR-NY-0006-9000
Avsec, Mark Edward (Ohio)
DR-NY-0006-9000
Band, Jonathan (District of Columbia)
DR-NY-0006-9000
Becker, Gary M (New York)
DR-NY-0006-9000
Bharara, Preetinder S. (New York)
DR-NY-0006-0007
Boccanfuso, Anthony D (New York)
DR-NY-0006-9000
Casper, Charles Blaine (Pennsylvania)
DR-NY-0006-9000
Cavanaugh, William Francis Jr (District of Columbia)
DR-NY-0006-0007 | DR-NY-0006-0012 | DR-NY-0006-9000
Chu, Lynn T (New York)
DR-NY-0006-9000
Chun, Marisa A (California)
DR-NY-0006-9000
Clarida, Robert William (New York)
DR-NY-0006-9000
Clopper, John Dalton (New York)
DR-NY-0006-0007 | DR-NY-0006-0012 | DR-NY-0006-9000
Cohn, Cindy A. (California)
DR-NY-0006-9000
Davis, John W. (California)
DR-NY-0006-9000
Dershowitz, Nathan Z (New York)
DR-NY-0006-9000
DeVore, Andrew (New York)
DR-NY-0006-9000
DeVries, Christina Jacqueline (California)
DR-NY-0006-9000
Donaldson, Richard Montgomery (Delaware)
DR-NY-0006-9000
Fetterman, Daniel J (New York)
DR-NY-0006-9000
Forrest, Katherine Bolan (New York)
DR-NY-0006-9000
Garbus, Martin (New York)
DR-NY-0006-9000
Grimmelmann, James Taylor Lewis (New York)
DR-NY-0006-9000
Guzman, Michael John (District of Columbia)
DR-NY-0006-9000
Hall, Joseph Solomon (District of Columbia)
DR-NY-0006-9000
Ho, Derek Tam (District of Columbia)
DR-NY-0006-9000
Kassam, Amin S (New York)
DR-NY-0006-9000
Kellogg, Michael K (District of Columbia)
DR-NY-0006-9000
Kornstein, William Francis (District of Columbia)
DR-NY-0006-9000
Lazebnik, Ron (New York)
DR-NY-0006-9000
Lynch, Jennifer (California)
DR-NY-0006-9000
Maggioni, Ilaria (New York)
DR-NY-0006-9000
Max, Theodore Conrad (New York)
DR-NY-0006-9000
McDermott, Mikaela Ann (New York)
DR-NY-0006-9000
Metlin, Elaine (District of Columbia)
DR-NY-0006-9000
Micheletto, Robert C (New York)
DR-NY-0006-9000
Morris, John Burnett Jr (New York)
DR-NY-0006-9000
Nimmer, David (California)
DR-NY-0006-9000
Ossola, Charles D (District of Columbia)
DR-NY-0006-9000
Pearlman, Jef (District of Columbia)
DR-NY-0006-9000
Perlman, Victor Sigmund (Pennsylvania)
DR-NY-0006-9000
Raj, Kiran Sriram (District of Columbia)
DR-NY-0006-9000
Roth, Nelson E (New York)
DR-NY-0006-9000
Rothstein, Paul S (Florida)
DR-NY-0006-9000
Rubin, Thomas Cort (Washington)
DR-NY-0006-9000
Saed, Shirley Othmana (New York)
DR-NY-0006-9000
Saito, Yasuhiro (New York)
DR-NY-0006-9000
Schruers, Matthew Christian (District of Columbia)
DR-NY-0006-9000
Schwartz, Rachel Eve (New York)
DR-NY-0006-9000
Shapiro, Alexandra A (New York)
DR-NY-0006-9000
Siavoshy, Babak (California)
DR-NY-0006-9000
Siegel, Edward Frank (Ohio)
DR-NY-0006-9000
Silverstein, Mark Lloyd (New York)
DR-NY-0006-9000
Siy, Sherman (District of Columbia)
DR-NY-0006-9000
Toren, Peter Jonathon (New York)
DR-NY-0006-9000
Turner, Robert Cunningham (New York)
DR-NY-0006-9000
Urban, Jennifer M. (California)
DR-NY-0006-9000
Weiss, Matthew J (New York)
DR-NY-0006-9000
Wiles, Alexander F (California)
DR-NY-0006-9000
Yadava, Nidhi (New York)
DR-NY-0006-9000
Zapolsky, David A (Washington)
DR-NY-0006-9000

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