On December 12, 2011, the Author's Guild filed a fourth amended complaint (PDF) against Google. This complaint is nearly identical to the first one, filed on September 20, 2005 (PDF). The two complaints between these (October 28, 2008 and November 16, 2009) included the Association of American Publishers, as did the two attempts at settling the case. (October 28, 2008, and November 13, 2009). The publishers had had their own complaint in 2005 before combining forces with the Authors Guild. Now the Authors Guild is again standing alone against Google's book digitizing efforts.
This fourth amended complaint brings us pretty much back to square one, with the addition of the involvement of more libraries and the creation of HathiTrust as a way for the libraries to store their (allegedly) ill-gotten copies. The library copies are a key element of the suit because they are proof that Google has not only digitized the library books but has made copies (the purview of copyright law) and distributed them to others.
The most interesting document of this latest group, and the one with the greatest detail about Google's actions, is the Memorandum in support of the class certification. This document is the explanation of why the Authors Guild should be considered by the court to be a valid representative of all authors in a class action suit. The document has a number of quotable moments, of which my favorite is the "tell it like it is in plain language" opening:
This litigation arises from Google's business decision to gain a competitive edge over its rivals in the search engine market by making digital copies of millions of "offline" printed materials. ... Rather than obtaining licenses from copyright owners for the digital use of their printed works, Google instead entered into agreements with libraries to gain access to these works. A number of university libraries allowed Google to make digital copies of the books in the libraries' collections, including in-copyright books. In exchange, Google provided digital copies of the books to the libraries. Google refers to this massive copyright infringement as its "Library Project." (p.1)The assumption on the part of most folks commenting on this latest development in this now 6-year-old case is that the settlement is dead. We are therefore back to the question of whether Google's book scanning is or is not Fair Use. This question, though, is only being asked on the part of authors, not publishers, and if anyone has inside knowledge on what approach the publishers are taking I would love to hear it. It is clear that the position of publishers in relation to Google has changed greatly over these past 5-6 years since the suit was originally filed. There are now reportedly thousands of publishers who are using Google Books to promote and sell their works. It also makes sense that publishers, as corporations, are better able to negotiate with Google than are individual authors. A large publisher with numerous books in print and in its backlist has clout that a single person does not have. In addition, large publishers have lawyers, or access to legal counsel. At least some publishers have made their peace with Google and are seeing the relationship as advantageous.
Looking at this from the library point of view I wonder what will happen to the millions of library books already scanned by Google. I also wonder what this awkward and failed attempt to create the overly broad settlement between Google and the AG/AAP will mean for future digitization projects. There are strong arguments for digitization for scholarly purposes, and the creation of a computational capability over millions of texts could be a positive step for research, especially in the social sciences and humanities. I hope that the botched attempt to commercialize the contents of libraries will not prejudice the future of digital research.