Several weeks ago now, Google announced the settlement of a copyright infringement case filed against it by a group of American publishers who objected to the Google Book Search project. (I recently wrote about the settlement here.) The Google Book Search project has the goal of digitizing virtually every book ever published, and making that database searchable. The plaintiffs had objected both to the digitizing, which involved wholesale copying of complete books, as well as displaying the search results, which they argued constituted further copying (and therefore infringement). Google based its defense entirely on the fair use doctrine under Section 107 of the Copyright Act (17 U.S.C. §107).
The settlement has Google paying the book publishers $125 million in exchange for essentially a perpetual license to digitize and store all of their books now in existence, as well as future books that they may publish. It places strict limitations on Google’s ability to display books that are in-print and in-copyright, but allows Google to not only display portions of out-of-print, but still in-copyright books, but to sell access to those books. Google can charge for access to the digital version of those books, and will be allowed to retain 37% of all revenues generated from the sale of those books and certain advertising revenues it may generate as well. In exchange, the publishers will dismiss their infringement action, and since it was filed as a class action, the settlement will bind both the named plaintiffs but all other U.S. publishers as well, unless they opt out.
This settlement has not gone unnoticed by Viacom, Inc., which also has a major copyright infringement suit pending against Google. Unlike the publishers’ case, the Viacom action involves the posting of Viacom owned videos on YouTube, a company owned by Google. Executives of Viacom are quoted as saying, basically, that since Google settled the publishers’ case, there is no reason it shouldn’t settle with Viacom (and pay Viacom a hefty settlement fee as well). While Google might decide to do so, if it made business sense to do so (as it did in the publishers’ case), the two cases have very little in common, other than the fact that they both involve Google as a defendant and they are both copyright infringement cases.
The Viacom case did not arise from a direct infringement by Google (or YouTube) of any copyrights owned by Viacom – which was the claim in the publishers’ case. Instead, the Viacom action seeks to hold Google liable for third party postings of Viacom videos on the YouTube website. Instead, of having to fit its actions under the fair use doctrine of copyright law, whose reach is very fact-specific, in the Viacom case, Google is able to take advantage of the DMCA “safe harbor” provisions, which immunize Google from any liability, as long as it complies with the requirements of the DMCA. While Viacom is arguing that Google cannot take advantage of the “safe harbor” provisions, that is an uphill battle that Viacom is likely to lose.
These are two very different lawsuits based on two very different provisions of U.S. copyright law. While Google may decide to settle with Viacom for business reasons, or Viacom may be able to convince a judge that Google is not entitled to the protections afforded by the DMCA, the two cases are entirely unrelated. Viacom is taking a big chance by pursuing this case, since of it loses, it will open the floodgates to having its videos posted all over the Internet (even more so that today). It is Viacom that should be looking for a way out of this mess it has gotten itself into, not Google. And you can be sure that any settlement entered into will be much more favorable to Google than to Viacom. (IMHO).
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