On the surface, the hearing was supposed to determine if a lower court made a mistake last year when it ruled that the case could proceed as a certified class action, meaning that the Authors Guild can seek damages from Google on behalf of every writer whose book was scanned.

The three appeals court judges, however, appeared less interested in the technical aspects of class actions than they were in tackling “fair use” — a four part test that examines whether a given activity (in this case Google’s book scanning) should be exempt from copyright.

“Shouldn’t we address that first?” asked Judge Pierre Leval, a noted fair use scholar, adding that the issues in the case appeared to be “out of sequence.”

Leval and fellow judge Barrington Parker appeared sympathetic at times to Google’s position that the book scanning is transformative and acts as a discovery method, rather than as a replacement for book sales. They suggested that the lower court should address the fair use issue sooner than later.

“If the case is continued, you could face decades of litigation,” said Parker. “This project, with potentially enormous value for our culture, has this great cloud hanging over it.”

Judge Leval also suggested that the book scanning may be analogous to a famous fair use case known as “Perfect 10,” in which a California case held that showing thumbnail images in search results is fair use — even though the entire image is reproduced.

One or many lawsuits?

Google’s lawyer, Seth Waxman, reiterated Google’s position that the scanning is transformative but argued that the court should decertify the class, and require the plaintiffs to proceed individually — rather than as a unified block.

The search giant’s position is that the millions of authors in question have very different perspectives on the scanning — and that many of them support it. The latter, Google said, shouldn’t be forced into a lawsuit they don’t support. In its earlier filings, Google produced a survey that said many authors like the idea of having snippets of their books appear in the company’s search results.

The appeals court, however, appeared reluctant to break the case into multiple baskets of plaintiffs, and questioned if this would lead to separate cases for every type of book.

“You’re going to have to get this resolved. Are you going to have five, 10, 20 different lawsuits? Poetry, science, math table ligation?” Judge Parker wondered

The Authors Guild, meanwhile, wants to go ahead with the fair use ruling, at trial if necessary, without distinguishing the different types of books and authors at issue — a potentially risky proposition for the Guild too.

The court drew a laugh when it asked the Guild’s lawyer, Robert LaRocca, if the group would be comfortable betting the whole fair use ruling on a sample scanned book of Google’s choosing.

The judges also asked LaRocca to explain why some authors were supporting Google’s position; he described them as “a very, very vocal group out at Berkeley.”

What next: some possible end games

It’s risky to read legal tea leaves from the questions judges ask. But, in this case, the appeals court appeared to be strongly considering remanding the case for a ruling on the fair use question — a decision that could then be appealed back to the Second Circuit.

The situation, however, is complicated by internal judicial politics. Specifically, the lower court judge who would have to take up the fair issue is Denny Chin — who now sits on the Second Circuit as a colleague of the three judges who heard today’s hearing. In the past, Chin has shown more sympathy to copyright owners than Leval; the trick for the appeals court, then, is to hand the case back to Chin with obvious guidance, but without upbraiding his handling of it so far.

There is also, of course, the question of money. Google has enough cash to litigate to the Supreme Court and back without breaking a sweat. The Authors Guild, on the other hand, may be feeling stretched as it pays for the appeals in the current case, while also pursuing a parallel case, known as HathiTrust, against a group of university libraries.

At the Tuesday hearing, the Authors Guild’s attorney said paying up would cost Google just 90 days of earnings — or around three billion dollars. It’s an interesting idea, but it’s not going to happen.

First, Google can litigate this thing till the cows come home. Second, the actual amount at issue is much less than the extravagant multibillion dollar figures flashed in numerous headlines. As I’ve explained before, the Authors Guild is seeking $750 per scanned book — but the actual number of books that would qualify is far fewer than the overall number of what Google has scanned.

Another possible outcome is that the appeals court agrees with Google’s request to decertify the class. This would likely force the Authors Guild to pack up and go home, leaving the handful of individual author plaintiffs to take on Google’s mighty lawyer machine out of their own pockets — game over, in other words.

Finally, the two sides may enter settlement negotiations (if they haven’t already) to permit the Authors Guild to enjoy a symbolic victory and, possibly, recoup some of their legal fees, while letting Google appear as a good guy. But don’t count on this, especially, if Google believes it can win the fair use ruling.

To read more background and insider details on the whole saga, see my e-book: “The Battle for the Books: Inside Google’s Gambit to create the world’s biggest library.”

The DPLA also offers a dynamic map, a timeline of exhibitions and app-building tools to build up the cultural collection even further.

Is there anything the DPLA doesn’t have? Well, we could start with the 20 million or so digital books that Google has scanned at hundreds of libraries in the last decade. This collection — which is much larger than the 2.4 million records at the DPLA — has gone unmentioned in the course of the new library’s launch this week. Instead, Google’s trove is gathering digital dust as a ceaseless copyright case between the company and the Authors Guild grinds on.

This is a shame. While the DPLA is a beautiful and important endeavor, it also feels woefully incomplete. Its library collection does’t include major institutions like Stanford and Michigan (alma mater of Google CEO Larry Page) which have enormous digital resources – this can hardly be described as “of America.” More seriously, the holes in the DPLA’s catalog show how a once-unified effort to digitize the country’s knowledge has become a patchwork affair.

As I described in Battle for the Books, Harvard librarian Robert Darnton not only pulled the university out of its one-time partnership with Google, but also led an intellectual campaign to stop the company’s scanning plans. Darnton’s actions not only drove legal opposition to a proposed settlement, but also produced lasting resentment within the librarian community — some of whom regard Darnton as a spoilsport and a demagogue.

The result is that the U.S. now has multiple, unconnected repositories that represent a digital fracturing of its culture heritage. It’s worth noting that DPLA also comes in addition to the Internet Archive, a long-time pioneer in digital scanning (I found the image at right by searching the DPLA; the results led me to a Connecticut library and then the Internet Archive).

This is in part due to copyright issues. While Google has made a strong case that its scanning activities are fair use, authors fear they will lose control over their works — and many people oppose granting Google or any other private company a role in the country’s library systems.

For now, the DPLA, which is funded by governments and foundations, is not in discussion with Google Books. It has, however, been talking to the Hathi Trust, a network of university libraries that have connected their digital collections (they obtained the collection as part of the agreement under which Google scanned their books).

“We’re just getting started and are in talks with many large content hubs; yes, we have spoken to HathiTrust and can imagine a very complimentary collaboration with them.” wrote Executive Director Dan Cohen.

Google did not return a request for comment.

Correction: An earlier version of this story said that the DPLA partnered with libraries in only six states. According to the official DPLA release, the organization “has partnered with six state and regional digital libraries and an equal number of large cultural heritage institutions— including the National Archives and Records Administration (NARA), the Smithsonian Institution, the New York Public Library, and Harvard University.”

In this excerpt, Roberts illustrates how, by early 2009, five years after the project launched, concerns about the legality and ethics of the project grew louder – and far more public. An early partner, Harvard University’s library began to turn against the project not long after the search giant reached a settlement agreement with authors and publishers. The leading anti-Google Books voice at Harvard was librarian Robert Darnton, and his criticisms reverberated throughout the librarian community.

By early 2009, influential figures in the academic and literary world had begun to digest the implications of the proposed Google Books settlement, and they were worried. The settlement raised questions about Google’s motives, and it also set off a number of emotional trip wires about knowledge in the digital age. Who will be the gatekeepers of our books — libraries or companies? Who will determine the literary canons of the future — people or computers?

The first to toss these questions like a glove at Google’s feet was Harvard librarian Robert Darnton. In February 2009, Darnton published a broadside in the New York Review of Books that many credit for rousing opponents to sandbag the initial settlement. Adorned with references to Voltaire and the Founding Fathers, the article was foremost a cri de coeur for the relevance of librarians: “The library remains at the heart of things, but it pumps nutrition throughout the university and often to the farthest reaches of cyberspace.”

The white-haired, well-dressed patrician fanned the flames of anxiety he had touched off with his article by giving a series of alarming talks from New England to New York. His tour to warn his compatriots about Google included a stop at Columbia University. Before a full auditorium, he offered an eloquent but withering critique of the search company’s cataloging efforts. The company could scan, but it could not sort, he sniffed. Darnton told the audience that Google had filed Walt Whitman’s Leaves of Grass under gardening (although those involved in the scanning claim this couldn’t have happened). The implication was clear. This was no Library of Alexandria that Google was creating, but rather an outlet store where all the books were dumped on the floor.

As for the Googlers themselves, Darnton was polite yet contemptuous: “They’re very nice people. They’re all under 30 years and they don’t sit in chairs; they sit on round balls.” The tweedy New York audience could not fail to hear the dog whistle Darnton was blowing. Its silent message: These are not our sorts of people. In a very polite email message, Darnton in 2009 declined my request for an interview, explaining that there was little he could add to what he had stated in his New York Review of Books article.

Darnton’s Harvard colleagues echoed his concerns about Big Google. These included Lessig, who had been an early champion of Google’s scanning efforts while at Stanford. In an essay in The New Republic, Lessig compared Google Books to a tiger kitten that would grow more dangerous with age. The grown tiger might be a corporation let off the “do no evil” leash and turned loose to maximize profit from monopoly control of the world’s books.

This opposition to Google by the Harvard community, Google’s erstwhile partner, also reflected something of a personal grudge. H.L. suggested that Google was an ungracious opportunist. “We at Harvard thought we owned the file, while they at Google thought they owned the file,” said the librarian. “These were books that were our books that we had invested in at great expense for 200 or 300 years. This is where things got very tense.”

Buy The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library on Amazon, Barnes & Noble, or iTunes.

For our newest ebook, The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library, GigaOM’s Jeff John Roberts describes the technological and legal twists and turns of the story through the people affected by it: the authors who feared losing rights to their work, publishers facing lost revenue, technologists pushing for a world where all written knowledge is digital, and librarians who believe in open access to information. 

As the fight brewed over who owned the rights to the books Google was busily digitizing, one question in particular came to mind: Why was Google doing this? In this excerpt, Roberts travels to the Stanford University campus to find an answer. Buy the book today on Amazon, Barnes & Noble or iTunes.

By definition, there is no market for millions of forgotten, out-of-print books; their contents offer endless opportunities for personal enrichment, but no equivalent financial richness. Scanning the world’s books presented, at best, a negligible business opportunity along with some very foreseeable legal headaches. So why did Google bother?

A good source on why Google does what it does is Stanford professor Terry Winograd, who supervised Larry Page’s doctoral studies and worked with both Google founders on the school’s Digital Library Project. Inside Winograd’s office in Stanford’s computer science building, shelves groaned with books, which, according to Winograd, are a technological obsolescence for others in the department.

Winograd is a quiet, mustached man with fluffy hair and a kind demeanor who is renowned for his pioneering work in artificial intelligence. There was little romantic in Winograd’s description of the genesis of the audacious book-scanning plan. He portrayed a project born equally of scholarly idealism and a cold, futuristic determinism. “It’s an idea Larry and Sergey had from the very beginning. It’s an idea that there’s knowledge out there,” he recalled. “It’s the intellectual, technological imperative.” Winograd would later repeat this phrase several times when describing how the Google founders see the world.

Multiple sources directly involved in the project confirmed that the push to scan the world’s books was not just one of the myriad eccentric projects (from driverless cars to a Mars map website) that constantly spring up all over Google. The book project was special.

“It came straight from Larry and Sergey,” said an author who took part in the negotiations between Google and the Authors Guild. “This is a project top management stayed close to and made clear that they wanted it done.”

While the Google founders’ determination to scan books is apparent, the personal motives of Brin and Page were less clear. Critics have pointed to the book scheme as proof the founders are greedy or power-hungry. New Yorker writer Ken Auletta and author of the book Googled, for instance, suggested the book scanning was simply pathological. In a 2010 phone interview, he explained to me, “They were just thinking as engineers do — Wouldn’t it be cool if we could do that? They’re not businessmen. They’re cold engineers.”

Others have been harsher, suggesting that the Google founders’ decision to scan books without permission amounts to a type of technological barbarism rooted in a lack of culture or literary savoir faire.

Such caricatures are neither fair nor accurate. Winograd dismissed them by pointing out that both Page and Brin were raised in academic families that valued books and libraries.

As for Page and Brin themselves, they don’t seem to have cared whether the world thought they were visionaries or villains. They had a task to accomplish. As Winograd said, “I think if you ask them, [they’d say] this is going to get done, even in five years. This is the technological imperative — information must be searchable. They’re often more in tune to the technological imperative than to social barriers. To them, social barriers are transient.”

The authors and publishers who eventually sued Google over the book scanning would likely chafe at the notion that they are “transient social barriers,” but the Google founders’ attitude was not altogether unreasonable. A new technology had made it possible to create a vast library of the world’s books, so what was everyone waiting for?

With this mix of insouciance and technological urgency, Brin and Page began to put their grand plan into place.

Buy The Battle for the Books ebook on Amazon, Barnes & Noble, or iTunes. For more information on this and other GigaOM Books, go to pro.gigaom.com/books.

In a statement released this morning, Google and the Association of American Publishers said they have formally resolved a copyright lawsuit that began in 2005. The deal will allow publishers to use books scanned by Google as they see fit — making them available for sale or withholding them.

Google’s top lawyer, David Drummond, said in the statement that the settlement means more ebooks will become available through Google’s online bookstore, Books on Google Play.

Details of the settlement are confidential, but a Google executive revealed in a phone interview with paidContent that the company “has very robust plans to increase analytics” with publishers. This is significant because publishers have long been frustrated by Amazon’s unwillingness to share data like customer profiles and buying habits.

The deal amounts to formal recognition of a process that was occurring already, in which Google and individual publishers were reaching deals. The Google partnership is helpful to the publishers because, in many cases, it will give them access to digital versions of their backlist.

The deal between Google and the publishers is likely, however, to anger the publishers’ one-time partner, the Authors Guild. Unlike the publishers, the Guild decided last December to review its original 2005 class action claim after Judge Denny Chin blew up a controversial three-way settlement deal in the spring of 2011.

Today’s development is also likely to further complicate disputes between authors and publishers over who owns the digital rights to books published in the pre-digital era.

The Google-publisher deal does not  resolve the question of whether Google’s book scanning amounted to copyright infringement. The company is adamant that the scanning qualifies under the “fair use” exemption, while the Authors Guild is demanding it pay $750 per book. Scholars and activists like the Electronic Frontier Foundation have filed briefs to support Google’s fair use argument. The case is now on hold as an appeals court decides whether it should have gone forward in the first place.

In its order, the New York court agreed to stay proceedings in a lower court while it reviews Judge Denny Chin’s decision last May to certify the class action — a move that allowed authors and illustrators to go forward with claims that Google scanned their works without permission.

The proceedings began in 2005 when the Authors Guild filed a copyright suit over Google’s decision to scan the world’s books. The lawsuit was on hold for several years as the parties tried to get court approval for a settlement that would have created a market for the books. The settlement failed, however, and the Authors Guild resumed legal action last December. The Guild is seeking $750 per book, but only a relatively small number of authors would qualify.

Today’s decision means that the overall case will be on hold for several months. If the appeals court upholds the certification order, it will likely return the case to Judge Chin (who is now on the Second Circuit too) with detailed instructions about how to proceed.

The big issue in the case now is whether or not Google’s scanning constituted “fair use,” which is a defense against copyright infringement. Several scholarly and librarian groups have intervened in Google’s favor in the hopes that the massive digital collection can be used for research purposes.

Meanwhile, a parallel case is playing out between the Authors Guild and the Hathi Trust, a coalition of universities that has collected copies of Google’s book scans. If that case is resolved first, it is likely to determine the fate of the Google Books class action.

Here is a copy of today’s order:

CA2 Order Granting AG Stay

In a short order, Judge Denny Chin rejected Google’s request to suspend the case while it goes before the US Court of Appeals for the Second Circuit. Chin noted that a stay would delay the case “by a year or more” and told Google and the Authors Guild, which is representing writers in a class action, to stick to the current schedule. That schedule calls for them to file arguments ahead of a December court hearing.

The case has taken on new life after Judge Chin’s decision in 2011 to reject an elaborate three-way settlement between Google, publishers and the Guild. The settlement would have resolved the Authors Guild’s original 2005 copyright lawsuit. The Guild is now asking Google to pay $750 for every registered work it scanned without permission.

Recently, the lawsuit has turned into a procedural thicket after the Second Circuit agreed to let Google appeal Chin’s decision earlier this year to certify the class (an important procedural hurdle that lets the Guild sue on behalf of all writers).

Chin’s latest ruling creates an unusual situation in which the books case is now before him and the appeals court at the same time. The situation is even more unusual because Chin himself now sits on the appeals court (although he has of course recused himself from hearing the Google appeal).

As it stands, the appeals court will hold a phone hearing for Google and the parties in October while the parties are slated to appear before Chin in December. Chin also recently granted permission for scholars and librarians to file “friends of the court” briefs in support of Google; many in the academic community believe the scanning will help in research.

The significance of the 2nd Circuit’s order is that the current proceedings, which have been heating up, will likely be suspended while the appeals court decides whether the class action should have been allowed to go ahead in the first place. The appeal will go before a panel of two judges after Judge Denny Chin recused himself on the grounds that he is still involved in the original case.

The decision to let Google appeal the certification order effectively takes the case out of the hands of Chin until the appeals court rules. Chin has been skeptical of many of Google’s positions so far.

The appeal will result in one of two outcomes. In one scenario, the Second Circuit could agree with Google that the class of authors shouldn’t have been certified in the first place. This would effectively put an end to the long-running case. In the alternative, the appeals court could uphold Chin’s decision to certify the class and return the case to him with additional guidance about what he should do next.

The appeals court and Chin are in a bit of an awkward spot because Chin is now also a member of the Second Circuit — the same court that is assigned to review Chin’s original decisions. (The situation came about because Chin maintained control of the original Google case after he was promoted in 2010).

Since the long-running Google Books case was destined to end up before it eventually, the Second Circuit likely decided to hear the class certification appeal in order to telegraph its ultimate intentions. Its ruling will thus either end the case or provide Chin with a possible playbook about how to handle it going forward.

Until today, Google and the Authors Guild have been sparring over cross motions for summary judgment — arguments that the case can be decided without a trial. Google says its scanning activities, which saw it create digital copies of more than 20 million books, amount to a fair use that didn’t result in any economic harm to authors. The Authors Guild, which first sued Google in 2005, claims that the company violated copyright and should pay $750 for every qualifying book.

As we wrote last week, recent reports that Google could be liable for billions of dollars are almost certainly overstated. The class of writers covered by the Authors Guild lawsuit is relatively small in relation to the number of books scanned, consisting of only those authors who registered their work with the copyright office and who are not involved in Google’s Partner Program.

The current court proceedings came after the Authors Guild last December fired up its original lawsuit from 2005. The lawsuit was on hold for years after Google, publishers and the Authors Guild hashed out a three-way settlement that would have created a market for many of the out-of-print books that Google scanned. After Judge Chin blew up the proposed settlement in March of 2011, Google and the publishers have been crafting a series of bilateral deals while the Authors Guild decided to press its original claims of copyright infringement.

Neither Google nor Authors Guild lawyer Michael Boni immediately responded to email requests for comment.

Here is today’s order:

Google Books Class Cert Appeal Granted

Even though Google has scanned more than 20 million books, a closer look at the Authors Guild’s case shows that the number of writers eligible to receive any potential payout is a fraction of that number.

To get a better idea of what Google would have to pay, let’s take a closer look at that “20 million books” figure. First off, recall that most of these books are not covered by copyright at all. According to a court filing this week, Google has scanned a total eight million in-copyright English language books (the rest are presumably public domain or foreign language books not covered by the U.S. lawsuit).

This eight million figure can be whittled down by another 2.5 million titles due to Google’s Partner Program. Books in the program, which involves joint ventures between Google and dozens of publishers, are excluded from the lawsuit.

That leaves 5.5 million books. From this figure, it’s necessary to subtract all works published outside the U.S. since they are outside the scope of the lawsuit. To account for this, let’s knock off another half million books (a conservative estimate given the publishing output of the U.K., Canada, Australia and New Zealand).

This leaves five million books, which is still a huge number. But here’s the biggest kicker: to be eligible for a payout, the book must have been registered with the U.S. Copyright Office within three months of publication and the copyright must be owned by a natural person (not a corporation).

To appreciate the significance of this, it’s important to know that most books scanned by Google haven’t been registered with the Copyright Office. That’s because registration is unnecessary for copyright protection; it’s only needed as a formality to go to court (and, after 1978, to seek automatic statutory damages).

What all of this means is that the number of books at issue in the Authors Guild lawsuit is likely under one million – and that Google’s potential liability is nowhere near billions of dollars.

In response to an email inquiry, Michael Boni, lawyer for the Authors Guild, did not disclose how many books are covered but wrote:

“The class is limited to authors (and heirs) of timely registered U.S. works, meaning works that are eligible for statutory damages under the U.S. Copyright Act … [We] do not yet have a number, and this will be part of the remedial phase and claim process.”

(For more on copyright technicalities, see Lloyd Jassin’s helpful CopyLaw pages)

Here is the original certification order that describes who is eligble:

Google Class Cert Order

These are among the details set out in a new court filing by the Authors Guild, which is locked in a long-running case over the search giant’s decision to digitize libraries.

The filing points to internal Google documents in an attempt to show that the scanning was an overtly commercial project, and that the scanning was not a fair use as Google is claiming.

In a 2003 internal Google presentation described in the filing, the company stated “[we want web searchers interested in book content to come to Google not Amazon.”

As annotated by the Authors’ Guild, the 2003 Google presentation also said “[e]verything else is secondary … but make money.” (The presentation was filed under seal so the context of the remark is unclear).

The Authors Guild filing, which asks Google to pay $750 per book, also reveals new details about how Google went about the massive scanning project which has produced more than 20 million digital titles since it began almost 10 years ago.

To carry out the scanning, Google used more than 300 machines and hundreds of contractors at locations near Boston, Ann Arbor and Mountain View, California. Google has now scanned more than 20 million titles, eight million of which are English language works still under copyright.

These new details come at a time when the long-running lawsuit, which began in 2005, is headed to an end game. The suit was on ice for several years as Google and the Authors Guild collaborated on a settlement rejected by the court in 2010 Now, both sides are sharpening their arguments over the whether the scanning is a fair use permitted under copyright law.

Google argues that the scanning has not cost authors any money and that it has produced innumerable benefits to scholars and libraries. The Authors Guild, on the other hand, argues that Google’s scanning was a high-handed unilateral decision that abrogates the role of traditional rights clearing agencies. The Guild also warns the digital collection could be subject to sabotage or hacking.

The next big date for the parties is October 9th when the parties will again appear before Judge Denny Chin to argue the case can be decided without a trial.

Google Books Statement of Facts Aug 2012