Note: There are two parts for the case page for Authors Guild v. Google.  Part I discusses the proposed class action settlement.  Part II discusses the fair use proceedings that followed the court's rejection of the proposed settlement.

The Authors Guild and Google sought final court approval of a massive settlement first announced in 2008. While the settlement sparked wide-ranging debate, EFF along with our partners focused on a specific issue that we felt was not adequately being included as part of that debate: reader privacy.

If there is no privacy of thought — which includes implicitly the right to read what one wants without the approval consent or knowledge of others — then there is no privacy period.

— Michael Chabon author The Yiddish Policemen’s Union: A Novel

...I believe that the fear of tracking will create a chilling effect on my readers and reduce my readership and therefore my revenue from these books. Moreover I write these books in order to participate in the public debate on [security] issues. Reduced readership negatively impacts my expressive interests as an author.

— Bruce Schneier author Beyond Fear

Other authors who shared our concerns:

• Lawrence Ferlinghetti, publisher, City Lights Books and author, A Coney Island of the Mind
• Jonathan Lethem, author, Fortress of Solitude
• Cory Doctorow, author, Little Brother

The products and services envisioned by the proposed settlement would have given Google not only an unprecedented ability to track our reading habits but to do so at an unprecedented level of granularity. Because the books would be accessed on Google's servers, Google would have known not only what books readers search for and access, but would also have known which pages they read how long they stayed on each page what book they read before and which books they access next. This was a level of reader surveillance that no library or bookstore has ever had.

Readers who feel surveilled will be chilled in their freedom of inquiry. As Supreme Court Justice William O. Douglas observed in 1953 "Once the government can demand of a publisher the names of the purchasers of his publications... [f]ear of criticism goes with every person into the bookstall... [and] inquiry will be discouraged." Or as Author Michael Chabon put it: "If there is no privacy of thought — which includes implicitly the right to read what one wants without the approval consent or knowledge of others — then there is no privacy period."

And it's not just Google that might want records about your reading habits. One of our core concerns was that proposed settlement permitted Google to turn over this sensitive reader information to governmental authorities or private third parties and need not insist on a warrant. This is hardly a hypothetical risk: between 2001 and 2005 libraries were contacted by law enforcement seeking information on patrons at least 200 times.  In 2006 alone AOL received almost 1 000 requests each month for information in civil and criminal cases.

This lack of protections for reader privacy stands in sharp contrast to the privacy protections that librarians and bookstores have been fighting for in connection with physical books for decades. Nearly every state has laws protecting the privacy of library patrons. Yet when Google scans books it obtained from libraries privacy protections could have been left behind at the digital threshold if Google doesn't stand up for them.

EFF Takes Action

EFF represented a coalition of authors and publishers — including best-sellers Michael Chabon Jonathan Lethem and technical author Bruce Schneier — in urging the Court to reject the proposed settlement unless it is amended or Google enforceably commits to ensure better reader privacy. The group of more than two dozen authors and publishers represented by EFF the American Civil Liberties Union (ACLU) and the Samuelson Law Technology and Public Policy Clinic at the University of California Berkeley School of Law (Samuelson clinic) filed an objection to the settlement in September 2009.

Background

The case began in 2005 when the Authors Guild sued Google for digitizing books as part of the Google Book Search program called "Google Print" at the time. Through partnerships with university libraries Google intended to scan books index the contents and provide both library users and the public with the ability to search through books. The Authors Guild complained that Google was "engaging in massive copyright infringement" by scanning books and that also that Google would be guilty of copyright infringement by displaying the search results to book-seeking users.

After a couple of years of litigation the Authors Guild and Google proposed a massive complex settlement in October 2008 setting off waves of controversy. In it the Authors Guild sought to allow Google to continue scanning books and moreover would allow Google to offer readers previews for free and full access to books for a fee through a few different models. In exchange Google planned to pay a portion of those fees back to the publishers and authors through the Book Rights Registry a separate non-profit entity created by the settlement and intended to represent the interests of authors and publishers.

The initial settlement resulted in a litany of objections from groups as varied as the US Department of Justice public interest groups foreign governments authors publishers physical and digital book retailers library associations and more. After the objections were filed the Authors Guild and Google were given extra time to amend the settlement.

EFF's Demands

Google eventually announced a privacy policy for Google Books. While it addresses some of the privacy concerns EFF and others have raised previously it does not go nearly far enough. The privacy policy can be changed at any time is not an enforceable obligation tied to the proposed settlement agreement and still fails to do the following:

• Protect your reading records from government and third party fishing expeditions by responding only to properly-issued warrants and court orders and by letting you know if someone has demanded access to information Google has collected about you;
• Delete any logging information for all services after a maximum of 30 days;
• Deliver two key privacy protections that regular books have: allow readers to "hide books under their bed" to protect against parents family members or other local users who might scrutinize their reading or to deliver a method of covering their reading tracks by anonymously transferring or giving purchases to accounts that do not have identifying features.

And that's just the tip of the iceberg — check out this blog post for more on the many shortcomings of Google Book Search's privacy policy. For all of these reasons in its present form and without further affirmative steps by Google either in the context of the settlement or outside it the proposed Settlement 2.0 made Google Books a threat to reader privacy.

Rejection of the Proposed Settlement

On March 22, 2011, Judge Chin issued a ruling rejecting the proposed settlement.  While noting that "[T]he privacy concerns are real," the court decided that they were not a basis, in themselves, to reject the proposed settlement. It noted that the settlement contained privacy protections for rightsholders and also noted that Google had "committed" to certain safeguards for readers, while acknowledging that those were voluntary only. The court closed with a strong nudge to Google: "I would think that certain additional privacy protections could be incorporated, while still accommodating Google's marketing efforts."

With the rejection of the proposed settlement, the case turned to questions about certification of the class and about fair use.  Part II of this case page discusses the fair use issues.