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2011 Stan. Tech. L. Rev. 1 (2011)

handle is hein.journals/stantlr2011 and id is 1 raw text is: 


Daniel Gervais: The Google Book Settlement and the TRIPS Agreement


                        The Google Book Settlement

                           and the TRIPS Agreement


                                       DANIEL GERVAIS *



                               CITE AS: 2011 STAN. TECH. L. REV. 1



                                        I. INTRODUCTION

    Not long after Google announced in December 2004 that it would include in its search database
the full text of books from a number of leading research libraries, two lawsuits-structured as class
actions-were filed by a group representing mostly trade authors and a major publisher.' One of the
key issues was whether Google's project was defensible as fair use.2
    After several years of discussion, a proposed settlement was reached.3 It would have allowed
Google to continue scanning copyrighted books into its search index and displaying the text to its
users in exchange for the payment of license fees to copyright holders.4 The proposed display rules
were contingent on whether a book was still in print.5 Additionally, rightsholders could opt out of the
settlement either entirely, by requesting the removal of protected books, or partially, by modifying
the default display rules.6
    The proposed settlement came under intense scrutiny and criticism.7 A number of foreign
rightsholders, and even foreign governments, opposed the deal.8


      Professor of Law, Co-Director, Technology and Entertainment Law Program, Vanderbilt University Law School.
      Complaint, McGraw-Hill Cos. v. Google Inc., No. 05-CV-8881 (S.D.N.Y. Oct. 19, 2005); Complaint, Author's Guild, Inc.
v. Google Inc., No. 05-CV-8136 (S.D.N.Y. Sept. 20, 2005).
    2 See KATE M. MANUEL, CONG. RESEARCH SERV., R40194, THE GOOGLE LIBRARY PROJECT: IS DIGITIZATION FOR
PURPOSES   OF   ONLINE   INDEXING    FAIR  USE   UNDER    COPYRIGHT    LAW?   5-9  (2009),  availabe at
http://opencrs.com/document/R40194/.
    Settlement Agreement, Author's Guild, Inc. v. Google Inc., No.-CV-8136 (S.D.N.Y. Oct. 28, 2008) (proposed), aia/ab/e at
http://www.googlebooksettlement.com/intl/en/Settlement-Agreement.pdf [hereinafter Settlement Agreement].
    4 Settlement Agreement, supra note 3,   2.1 (a). The settlement applied to books (not periodicals) published before January 5,
2009.
    5 Id. 3.2(d). For public domain books, see id.   1.116. According to Google, approximately seventy percent of copyrighted
books are out of print. Jonathan Band, The Long and Winding Road to the Goog/e Books Settleme t, 9 J. MARSHALL REV. INTELL. PROP.
L. 227, 262 (2009).
    6 Settlement Agreement, spra note 3,   1.98, 3.5. Under the original settlement agreement, the deadline was September 4,
2009. See Order at 2, Authors Guild, Inc. v. Google, Inc., No. 05-CV-8136 (S.D.N.Y. Apr. 28, 2009) (extending the original opt-out
deadline of May 5, 2009).
    7 For example, the U.S. Department of Justice submitted a brief opposing some aspects of the proposed settlement. See
Statement of Interest of the United States of America Regarding Proposed Class Settlement at 6-10, Authors Guild, Inc. v. Google
Inc., No. 05-CV-8136, 2009 WL 3045979 (S.D.N.Y. Sept. 18, 2009). Additionally, the House Judiciary Committee questioned
whether a solution was better achieved through legislation than through class action litigation. See Competition and Commerce in Digita/
Books Hearng Before the H. Comm. on the Juridar, 111th Cong. 2-3 (2009). Lastly, Professor Pamela Samuelson wrote a strong set of


               Copyright C 2011 Stanford Technology Law Review. A!! Rights Reserved.

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