On October 16, the Second Circuit affirmed a summary judgment ruling that Google’s “Google Books” project did not infringe the copyright of the authors whose books were included within Google Books. This story, however, is not complete without revisiting what could have been if the parties’ 2008 settlement had been endorsed by the Department of Justice and approved by the court. With the benefit of hindsight, we can see that the near-settlement was truly a lost opportunity for plaintiff, defendant and the general public.

In December 2003, Google launched Google Print, which was later renamed Google Books. Google Print scanned millions of books, many of which were out-of-print, from various contributing libraries and made the digitized copies fully searchable online. Through a very narrowly tailored process, Google Books made up to three one-eighth page excerpts, known as “snippets,” available per book so that searchers could determine whether the reference to the search terms was a relevant hit. In September 2005, a proposed class including the Authors Guild filed a putative class action lawsuit (an individual lawsuit which the plaintiffs seek to have certified as a class action) against Google, alleging that Google was committing copyright infringement by digitizing the books, making the full contents of the books searchable and providing snippets of the books.

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