The case shares the same history as the Google Book Settlement – except that the American claimants chose to settle while the French did not.
Google Book Search began with a ‘Partner Program’ – publishers licensing Google to digitize books and display the page containing the search term plus a few adjacent pages. In 2004 the Google Books Library Project was announced. Participating libraries allow Google to scan their books (out of copyright and in copyright). Public domain books are available in full. Snippets of in-copyright books are returned by a search. Google say they do not need permission from the copyright owners for this: it is covered by fair use. Google has now scanned more than 10 million books. In 2005 Google was sued for copyright infringement by the Authors Guild and five American publishers. In 2006 three publishers in the La Martinière group sued in France.
There were three key issues in the French case. Did the French publishers own the digital rights in the books? Should French or US law apply? Is copyright infringed?
Google argued that La Martinière were in no position to sue as they didn’t have the relevant digital rights.
The significance of choice of law is that European law does not provide Google with the potential fair use defence that may be available under US law. La Martinière argued that for délits complexes (where the cause and the effect are in different countries) the court should apply the law of the country that has the most points of contact with the case. La Martinière said France is that country for several reasons including: one of the defendants is Google France (based in France and it has some responsibility for Google Book Search), the site has a French domain name and is written in French, the claimants are based in France and the books’ authors are French. They also questioned whether it is certain that the place where the books were scanned and the location of the servers is in the US.
Google said that scanning for Google Book Search is not ‘reproduction’ in French law as the scan was not for human consumption, only the extracts – Article L. 122-3 of the Code of Intellectual Property says ‘reproduction shall consist in the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way’ (italics added). The extracts, Google said, fall within the copyright exception for short quotations. La Martinière disagreed, adding that Google Book Search also returns complete book jackets.
The judgment calls into question the UK Publishers Association’s motivation for signing up to the Google Book Settlement. One of the reasons it has been sitting on its hands over the Settlement is that they are dissuaded by the costs of litigating against the mighty Google. This risk analysis has now been called into question. Google, however, is not the only mighty force the PA has been influenced by: some powerful UK publishers are pushing for the Settlement to go through as they have private deals in place.