Ever since Google's announcement of its mass digitization project including several high-profile university and public libraries in 2004, legal suits have accompanied its continuing development. Not long after the Authors Guild and the Association of American publishers sued Google for violation of copyright.
In the intervening years Google continued to add contributing library partners, including several non-US libraries to the project. After two years of negotiation in the Authors' and Publishers' law suit, a settlement was reached in 2008. The settlement avoided the need to get a ruling on the merits of the copyright issues
Instead an agreement was reached for Google to compensate the plaintiffs in exchange for the right to make millions of books available to the public. But the settlement triggered hundreds of objections from such stakeholders as journalist, fantasy writers, foreign authors and publishers and Google competitors, Amazon and Microsoft.
A revised agreement was also heavily challenged. The litigation continued until March 2011 when Judge Chin finally rejected the attempted settlement. The judge concluded that "the ASA is not fair, adequate, and reasonable." However, he urged the parties to consider further changes, esp.around the issue of going from an opt-out option for authors and publishers, to opt-in option for copyright holders.
All the while, Google has continued to scan materials from participating libraries. There was an explicit inclusion of some magazines by agreement with publishers, in 2008. While this limited addition of magazines was authorized back in 2008, the recent evidence of millions of additional magazines having been scanned by the Google Book Project, might raise additional new copyright claims from magazine article authors.
An article in the May issue of "AALL Spectrum", "Will Google Books Library Project End Copyright?", by Barbara Kevles, makes the case that Google has been including a massive inventory of magazines and periodicals in a system that claimed to be scanning books.
She says that periodical tiles do not belong as part of the Google Book settlement. She points out that the labeling of these works as "books" is disingenuous and incorrect. Also, since they have not been properly identified, there is no corresponding opt-out option as book authors would be provided.
Ms. Kevles sites the landmark Supreme Court case of "The New York Times Company ,Inc. v. Jonathan Tasisni, et al.", as a possible basis for magazine authors to claim compensation for their work product in the scanned periodicals. Under that decision major electronic databases and publishers have to "compensate freelance authors for the use of digitized articles displayed standing alone, outside their original context."
However, the "outside the original context" provision is key in deciding whether the writers can actually sue for compensation. Probably most of the magazines that were scanned by Google from the participating libraries, were probably all complete bound issues from their shelves.
Any single article is part of a magazine content that is presented to the end user in its original context which the publisher is entitled to make use of. If anyone were to sue Google for the unauthorized scanning and use of entire magazines, it would have to be the publishers or database owners.
While Ms. Kevles seems to be encouraging law suits by the writers or their associations. It is not clear whether they actually have standing to do so. However, as her article points out, the legal uncertainty created by all the litigation and lack of a widely accepted settlement, by itself, chills the market for subscribers to a Google Book product.
They may fear the legal uncertainty or potential copyright liability, still affecting these products. If the legal pot continues to be stirred, that might be an indirect way to restrain Google Books' scanning and distribution efforts.
The article makes an oblique reference to the recent decision in THE AUTHORS GUILD, INC. v. HATHITRUST in which a cooperative of non-profit libraries won convincingly on similar issues of fair use for transformative purposes, esp. for the benefit of print-impaired users. However, Ms. Kevles says that the Google is not a non-profit entity, and its scanning and distribution project should be seen as a commercial activity for its own economic benefit, at the possible expense of other economic actors.
She quotes from an Authors' Guild argument that “Google undertook the Library Project for commercial reasons…. to gain a competitive advantage over other participants in the search engine market, by offering a wealth of content not available elsewhere ... to attract visitors to its website, thereby increasing its attractiveness to advertisers.”
Since non-profit status was one of the key factors in evaluating "the purpose and character of the use", in the Hathi Trust case. This line of argument might mean that the ruling in the Hathi case does not bar authors and publishers from continuing to pursue their case against Google, as a for-profit company.