Monday 12 April 2010

If Google paid us every time we clicked...

Last week photographers, illustrators, graphic artists and photo libraries launched a suit against Google, centred on Book Search and the Book Settlement. It alleges that Google reproduced visual works (scanning more than 12 million books), distributing and publicly displaying them. Google, it says, has posted them on its website and stated its intention to exploit them via the Settlement’s book sales and subscriptions.

Get the picture?

Google Book Search displays images in books for which Google has a licence from the publishers. Otherwise it only displays thumbnail jacket images.

The Settlement, for the most part, excludes visual copyright authors but not necessarily images. A Google spokesperson, as reported by Erick Schonfeld of TechCrunch, said: ‘If the book’s rightsholder also owns the copyrights to the photographs in the book, then those images will be included. If they don’t, then the photographs won’t be displayed.’ Publishers can claim that they own images’ copyright by ticking a box on the Settlement claim form.

Thumbnails, digital rights and libraries

The recent French judgment held that Book Search’s jacket thumbnails infringed (small but all there) – would US law give them a thumbs down? In Perfect 10 it was held that Google’s thumbnails in Image Search were ‘highly transformative’ fair use. However, there is a difference between the index of thumbnails generated by a search engine of the Web and Book Search’s catalogue of Google’s book database.

The next question is whether the images in the books licensed to Google by the publishers (for Book Search or the Settlement) have been licensed by the authors and right owners. Needless to say, whether publishers own digital rights is a question that can only be determined by detailed contractual analysis. Not only can a single word turn a contract on its head but choice of law leads to different attitudes to digitization: French law is systematic, Germany’s new law is controversially retrospective, New York law and Californian law are a continent apart and English law is a barrister’s field day.

As for infringement through ‘distribution’, it seems likely the plaintiffs will point to Google’s deal with the libraries that let them scan their collections. Google sends them a copy of the scan as payment.


The plaintiffs objected to the Settlement on the grounds that having previously been included in the complaint’s class, they were later dropped. They may have less to complain about than writers (there never was much mileage in snippets from pictures) but it may be that this fresh claim will zoom in on the problems of digital rights ownership and Google’s contracts with the libraries. If they succeed, the Settlement will find itself blocked by an injunction.

Since it’s another class action, what about non-American photographers, graphic artists and picture libraries? That has yet to come into focus. And damages? They’re high – after all, there’s no limit to the cost of a click.

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