Letter from AmeriKat I - Class Action Strikes Again for Google Books

Last week while the AmeriKat was despairing over Parliament's passing of the misinformed Digital Economy Bill - a piece of legislation that makes the US's Digital Millennium Copyright Act (DMCA) look as fierce as a fluffy kitten - she was also battling with the recent rash of sunshine spilling onto her desk. This put her in a dilemma of either closing the blinds and falling back into the dreary darkness of the winter months or squinting with joy in the afternoon sunbeam. She chose the latter, unfortunately. By Friday, albeit beaming with hours of sun exposure and Vitamin D, the afternoons of squinting had produced an absolutely phenomenal headache. A lesson that if one enjoys too much of a good thing, there is always a price to pay.

(Picture above - having not seen the sun for the past few months, the AmeriKat tentatively tests out the sunbeam with her paw)

"Don't forget us!" - Photographers and illustrators demand an audience with the Google Book Settlement

This is a lesson that Google is learning the hard way, with another class action lawsuit being filed against them as a result of the Google Books project. Last week, a group of photographers and illustrators including the American Society of Media Photographers (ASMP) and the Graphic Artist Guild filed a copyright infringement claim in New York federal court claiming that Google should compensate them for violating their copyright. They contend that although Google has made deals with literary authors and publishers to scan their books as part of the Google Books project, Google never asked for consent from artistic (photographers and illustrators) authors whose works were contained in the scanned books. The lawsuit alleges that by scanning, storing and disseminating the books which contained visual works Google has infringed and threatens to continue infringing the authors' copyright in the photographs and illustrations.

According to the mere 22-page complaint, Google has conceded that it has already scanned over 12 million books in their entirety and has identified 174 million books that it may similarly reproduce and publicly display. These books and periodicals, allege the complaint, contain the works of photographers and illustrators represented by the class action. The complaint alleges in essence that the conduct of Google was wilful because they should have and would have known that the class member's consent was required. No surprise of course that the complaint is claiming statutory damages per wilful infringement. However, according to the Wall Street Journal, Google does not display images from books which are out of print and only displays images from in-print books if they have received the consent of the copyright holder.

ASMP says that it filed the suit after the court handling the Google Book Settlement dismissed its request to be included in the existing lawsuit with the original class action complainants. In November 2009 Judge Denny Chin considered that the settlement only covered textual-rights holders and to allow the addition of pictorial-rights holders would complicate matters and prejudice any progress that had already been made. ["What progress?", the AmeriKat asks.] Since last year, ASMP has been battling Google and the Settlement's blind eye to the rights of a

"vast majority of photographers and graphic artists, whose works have been and continue to be digitised by Google without authorisation, and who have been members of the plaintiffs' class since June 2006, would neither receive compensation for past infringement nor any benefit going forward."

According to Wired, Eugen Mopski (executive director of ASMP) said that "If there is going to be a system developed to manage the compensation for these types of books, we felt visual artists need to be represented. We have been totally excluded [from the Google Book settlement]. We want a seat at the table."

Graphic Artist Guild President John Schmelzer said in a press statement

"institutionalized copyright infringement from Google not only threatens the future of an $8 billion industry, it undermines the very fabric of American culture."

Google spokesperson, Gabriel Stricker, wrote in a e-mail statement to CNN that:

"We are confident that Google Books is fully compliant with U.S. and international copyright law. Google Books is an historic effort to make all of the knowledge contained within the world's books searchable online. It exposes readers to information they might not otherwise see, and it provides authors and publishers with a new way to be found."

The AmeriKat pities the Judge who has to handle this complaint in the shadow of the original Google Book Settlement. Judge Chin has yet to rule on the original class action Settlement following February's fairness hearing.

Click here for previous AmeriKat posts on the Google Book Settlement.