Bloomberg News

Google Argues for Dismissal of Authors’ Book-Scan Lawsuit

May 03, 2012

Google Inc. (GOOG:US) asked a judge to dismiss a lawsuit by an organization representing authors over the search- engine company’s digital scanning of millions of books, saying the group can’t represent the owners of the books’ copyrights.

U.S. Circuit Judge Denny Chin in Manhattan heard arguments today on motions by Google to deny the authors the right to proceed as a class and to dismiss the organization’s case. Chin last year rejected a $125 million settlement between the two sides and the parties have been unable to reach a new agreement.

“It would be a terrible burden on the court if each individual author was forced to litigate,” Joanne Zack, a lawyer for the Authors Guild, told the judge. “A class action is superior.”

Google announced in 2004 a plan to digitally scan books from public and university libraries to provide short snippets of text to people who use its Internet search engine. The Authors Guild, individual authors and publishing companies sued in 2005, claiming Mountain View, California-based Google hadn’t sought authorization from the owners of the works.

Google has argued that the display of snippets of text is fair use under copyright law. Chin asked Google today why it was important at this stage of the case to determine the ownership of the copyrights.

‘Ultimate Question’

“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. “Many authors contracted that right away to publishers.”

Google said in court papers that because the guild doesn’t claim to own the copyrights at issue, it can’t sue on behalf of authors. Google’s lawyer also said today that the company’s scanning project has been an “economic benefit” to many authors.

Zack, the authors’ lawyer, told the judge there was “no evidence of a conflict among class members on financial benefits.”

Among the plaintiffs are three individual authors: Jim Bouton, the former New York Yankees pitcher who wrote “Ball Four,” Joseph Goulden and Betty Miles.

“We are fully prepared to litigate this case against the three individual plaintiffs,” Durie said in court.

The judge said he would rule later on the motions.

Jury Trial Sought

Chin has said the two sides can submit motions for judgment without a trial and that he will hear oral arguments on those proposals in September. The authors have asked for a jury trial. Chin was assigned the case in 2009 while he was a district judge. He has retained it since being appointed to the federal appeals court.

A related lawsuit was brought by several organizations representing visual artists. Chin also will consider a motion by Google to dismiss their case.

Google said it’s still in talks about a possible settlement with book publishers including McGraw Hill Cos., (MHP:US) Simon & Schuster Inc. and John Wiley & Sons Inc. (A:US) Today’s hearing didn’t involve the publishers.

“We’re hopeful we can reach agreement with the publishers,” Megan Lamb, a Google spokeswoman, said after the hearing.

Google said in a February court filing that it has scanned more than 20 million books, and that Web users can see excerpts in English from more than 4 million. The project began with the digitizing of books from the libraries of the University of Michigan, Harvard University, Stanford University, Oxford University and the New York Public Library.

Google rose $2.38 to $609.64 at 1:53 p.m. New York time in Nasdaq Stock Market trading.

The authors’ case is Authors Guild v. Google, 05-08136; the visual artists’ case is American Society of Media Photographers v. Google, 10-02977; U.S. District Court, Southern District of New York (Manhattan).

To contact the reporter on this story: Don Jeffrey in New York at djeffrey1@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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