Posted by Victoria Strauss for Writer Beware

Seven years ago, the Authors Guild and several major publishers (including McGraw Hill, Penguin, and John Wiley) filed suit against Google for its unauthorized scanning of in-copyright books. The AG and publishers claimed that the scanning was a violation of copyright, since permission from the rightsholders to create a new book format hadn’t been sought. Google argued that the scanning wasn’t a new format at all, but fair use of an existing format.

A controversial settlement to the suit was crafted by the AG and Google in 2009–and rejected by the court in early 2011. Since then, the parties have been dancing around each other, with motions and counter-motions as the litigation drags on.

While the AG has stood firm in its commitment to the suit, it’s long been rumored that the publishers were considering a separate settlement. Now rumor has become fact. On behalf of the litigating publishers, the Association of American Publishers announced yesterday that a settlement had been reached.

In its statement, the AAP says that

The settlement acknowledges the rights and interests of copyright-holders. US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.

Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works.

Other terms of the settlement are confidential. Since this is a private settlement between the parties, the terms don’t have to be disclosed or approved by the court.

This, of course, leaves a raft of questions unanswered. The publishers can remove the Google-digitized books if they don’t want them included–but what options do authors have? What about orphan works? Will Google be able to sell the digitized books–and if so, what share will publishers receive, and will authors benefit? The contracts for many of the books are pre-digital, and don’t incorporate electronic rights–so should publishers have any control over the digitized books at all, much less receive a digital copy “for their own use”?

In a blog post at PW, Peter Brantley notes that these digital copies may be of limited utility due to the nature of Google’s scanning. Even so, the settlement gives the settling publishers–and non-settling publishers, if they follow this same model in negotiating with Google–control of something they arguably shouldn’t be able to possess, and appears to leave authors out of the equation. James Grimmelmann, a copyright expert and one of the most objective commenters on the Google litigation, worries that “Google is going to increasingly use the consent of the publishers as an argument that the authors don’t even speak for copyright owners.”

As many commenters have noted, this is a fizzle of an ending for such a lengthy litigation. It leaves Google’s status unchanged, and doesn’t seem to give the publishers anything they didn’t already have (since Google always allowed rightsholders to opt out). The publishers have basically walked away from the legal issues involved–which may reflect litigation fatigue, but also is an acknowledgment of how much the digital marketplace has changed over the past seven years. When the suit was filed, the value of digital rights was still a subject of debate. That’s no longer the case. As Andrew Albanese points out in PW’s coverage of the settlement,

At the time of the lawsuit, while there was a Google partner program, there was no Google “bookstore.” Now, under the settlement agreement, millions of long out-of-print books scanned by Google via its Library Project can be included in Google Play, turning what may have looked like a potential threat at the time, into a potential moneymaker.

A moneymaker for publishers. But what about authors?

The settlement doesn’t affect the Authors Guild’s class action litigation against Google, which is proceeding.