Law Times

Law Times • June 7, 2010 FOCUS PAGE 13 Google Books continues to prompt litigation Copyright matter remains ongoing despite U.S. settlement with authors BY PAUL BRENT For Law Times as early as this month, it appears its legal issues won't disappear with the launch of its Google Editions e-book service. Th at's perhaps not surprising W given that the California com- pany intends to make the biggest changes to the written word since ink was spread on papyrus. Not only does it intend to sell e-books online, which would put it in di- rect competition with the likes of Apple Inc. and Amazon.com Inc., its scheme to scan and mar- ket millions out-of-print, but still copyrighted, works online has raised legal issues in the United States and internationally. A U.S. class action suit brought by publishers and au- thors claiming Google didn't have the necessary permission to scan and distribute out-of- print works has been tenta- tively settled. But as that pro- posed settlement awaits a fi nal judgment from U.S. District Court Judge Denny Chin, the agreement continues to attract objections from near and far as well as a new legal challenge from a group excluded from the fi ve-year negotiation process. Th e Open Book Alliance, a group that opposes the deal and includes as members rival online companies Amazon, Microsoft, and Yahoo, claims the proposed settlement would violate parts of the Berne Con- vention for the Protection of Literary and Artistic Works because the "rights aff orded to class members under proposed settlement are an inadequate substitution for the exclusive rights it takes away," and it "requires foreign rights holders to opt out to preserve existing copyright protections." Th e group also said the settlement violates the "prin- ciples of non-discrimination" enshrined in the World Trade Organization's Agreement on Trade-related Aspects of Intel- lectual Property Rights because it gives certain favourable terms to nationals of Britain, Canada, and Australia not bestowed on all countries. Th e alliance con- tends as well that less-favoured countries, such as France and Germany, that have formally come out against the proposed settlement may take the fi ght to the WTO. Th e agreement is also op- posed by the U.S. Department of Justice. It argues the deal would give Google de facto mo- nopoly power in this newly cre- ated market. Th e deal has also generated heat in Canada, where a group of authors has launched an on- line petition against it. Protest organizer and author Sarah Sheard, who has collected hundreds of petitioner names on her blog, believes Canada Franchise Legislation in Canada Whether you represent franchisees or franchisors, Franchise Legislation in Canada is a must-have resource for any franchise lawyer. Filled with valuable commentary, annotations and cases, this resource takes a comprehensive look at franchising from a national perspective. This looseleaf publication contains: • • • • ORDER your copy today Looseleaf & binder • June 2010 • $145 Releases invoiced separately (1/yr) P/C 099303000 • ISSN 1923-2128 the full-text versions of all provincial franchise legislation tables of concordance to help interpret existing franchising legislation in Alberta, Manitoba, New Brunswick, Ontario and P.E.I. concordance contrasting Canadian and U.S. franchising legislation annotations updated to 2010 with case law and commentary including: • • relevant court decisions from across Canada, as well as extensive U.S., U.K. and Australian case law on the topic of fair dealing invaluable expert commentary identifying problem areas, such as those introduced by the recent Ontario Court of Appeal decision in Narrow 1/8 - 3X.indd 1 2/15/11 2:44:55 PM hile Google Inc. may offi cially get into the bookselling business should join the list of countries with English-language presses that were exempted from the agreement "because they pro- tested vigorously against it. We wish to protest just as loudly." Th e current U.S. case, Au- thors Guild v. Google Inc., origi- nated with the search-engine giant's move to begin digitiz- ing books in December 2004. Google would work with ma- jor libraries to digitize their collections, including works covered by copyright, and bib- liographical information would be searchable. Publications in the public domain would be fully available online while only small portions of copyrighted works would appear. Because works could be transmitted digitally, however, security of scanned works has proven to be a major concern for publishers and authors. Th e result was the 2005 suit that has dragged on until today. According to James De- Long, a vice president and se- nior analyst with the non-profi t Convergence Law Institute, the matter "qualifi es as 'a great case'" based on its scope (tens of millions of books, hundreds of millions of people) and its potential infl uence on prop- erty rights and information in the digital world as well as be- ing the best example of society's shift from physical to electronic media. Writing on govmonitor.com, calls DeLong the amended settlement agreement "a well- crafted and ingenious docu- ment that creates the equivalent of a joint venture between Google and the rights holders." Th e deal makes out-of-print books available, the rights holders can retain control if they want, and the revenues from book sales, advertising, and other sources are split with two-thirds going to the rights holders. "For Google, it is an excel- lent deal, since it will have a de facto monopoly on the commer- cial uses of the digitized body of books, which it can mine for data and to which it can attach advertising, since the self-im- posed stricture against commer- cial uses, made in the interests of strengthening the fair-use argu- ment, will no longer be neces- sary," according to DeLong. "As far as the rights holders go, it looks like a good deal." Th e tentative agreement also prompted photographers and graphic artists to launch their own lawsuit in an eff ort to win their seat at the negotiating table and a share of future online profi ts. Th e group, made up of the American Society of Media Photographers along with the Graphic Artists Guild, Picture Archive Council of America, North American Nature Pho- tography Association, and Professional Photographers of America fi led their copyright- infringement class action suit alleging Google had failed to obtain permission to scan and display books from people who owned rights to photographs and illustrations that appear in the titles. Th e group tried unsuccess- fully to join the existing class ac- tion only to be turned down by Judge Chin, who said it could jeopardize the settlement. "We are interested in some form of compensation for past infringements and the develop- ment of a future business mod- el and the ongoing compensa- tion," says Eugene Mopsik, executive director of the Ameri- can Society of Media Photogra- phers. "As crude as it sounds, if it is good for the authors, it is good for the illustrators." Still, Mopsik doubts the illus- trators' suit will have any bear- ing on the current agreement. "I think the biggest impedi- ment to the current settlement is the Justice Department," he says, hastening to add that he's not a lawyer. "From what my knowl- edge is, I would say the Justice Department carries the most weight — that and Judge Chin's pending movement to another court and depending on how fast he wants to get something off his plate." LT To advertise in an upcoming issue, contact our sales team: Karen Lorimer 905-713-4339 karen.lorimer@thomsonreuters.com Kimberlee Pascoe 905-713-4342 kimberlee.pascoe@thomsonreuters.com For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0607 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. DILLON_Franchise Legislation in Canada (LT 1-3x4).indd 1 www.lawtimesnews.com 6/2/10 11:31:33 AM 6792341 Peter Dillon Canada Inc. v. Dollar It Ltd.

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• Focus On Internet/E-Commerce Law