C&RL News March 2010  164

DOJ releases fourth filing on Google 
Book Settlement
In early February, the United States Depart-
ment of Justice (DOJ) released its fourth filing 
regarding the proposed Google Book Search 
settlement. 

As in previous filings, the DOJ once again 
sent the settlement parties—Google, the As-
sociation of American Publishers (AAP), and 
the Authors Guild—back to the drawing board 
by recommended parties renegotiate the terms 
in the amended settlement agreement (ASA) 
due to continued concerns regarding the scope 
of the agreement. 

Stating that the ASA “suffers from the same 
core problem as the original agreement,” the 
DOJ argues that the class settlement mecha-
nism has been used by Google, AAP, and the 
Authors Guild to settle a dispute that goes 
well beyond the initial complaint—whether 
the scanning of books to provide an online 
searchable index is a fair use.

Instead, the agreement establishes a new 
business arrangement for the sale of books 
without providing sufficient notice to rights 
holders in a fashion that conveys to Google 
market dominance. The DOJ also expressed 
concern about the Books Rights Registry 
and its control over the “Unclaimed Works 
Fiduciary,” which would dictate pricing and 
terms of use for unclaimed works. The filing 
also includes a list of recommendations for 
the court should it decide to approve the 
ASA at the fairness hearing, which was held 
February 18. Updates on the Google Book 
Search settlement are available at wo.ala.org 
/gbs/.

Library associations support online 
software reseller in Vernor v. Autodesk 
infringement lawsuit
On February 11, ALA, ACRL, and the As-
sociation of Research Libraries (ARL) joined 

a coalition of public interest and consumer 
groups in urging a federal appeals court to 
preserve consumers’ rights and the First Sale 
Doctrine (which allows libraries to lend books) 
in a battle over an Internet auction of used 
computer software.

An amicus curiae brief was filed with the 
U.S. Court of Appeals for the 9th Circuit, the 
Electronic Frontier Foundation—joined by the 
library associations, the Consumer Federa-
tion of America, U.S. Public Interest Research 
Group, and Public Knowledge—in support of 
plaintiff Timothy Vernor. Vernor is an online 
software reseller who tried to auction four 
authentic packages of Autodesk’s AutoCAD 
software on eBay. Autodesk sent takedown 
notices to block his auctions and threatened to 
sue him for copyright infringement, claiming 
that its software is only “licensed,” never sold.

At the heart of the case is the First Sale 
Doctrine—an important limitation under 
copyright law that gives copyright holders 
control over the first vending or sale of their 
work(s). The first sale doctrine steps in after an 
individual copy has been sold and puts further 
disposition of the copy beyond the reach of 
the copyright owner. The first sale doctrine is 
fundamental for libraries and other organiza-
tions, such as archives, used bookstores and 
online auctions, as it allows a “second life” for 
copyrighted works. 

The brief argues, in part, that the first sale 
doctrine is well-established, serves critical eco-
nomic and democratic values, and promotes 
access to knowledge, preservation of culture, 
and resistance to censorship. Libraries rely on 
provisions in the Copyright Act, such as first 
sale, to accept donations of special collections 
and to preserve these works. If Autodesk wins 
the case, software vendors would potentially 
be permitted to evade the first sale doctrine 
via contractual license agreements. Such a 
ruling could allow other copyright owners to 
follow suit with licenses on books, CDs, DVDs, 
and other media, with strong implications for 
libraries and our users. 

Jenni Terry is press officer at ALA’s Washington Office, 
e-mail: jterry@alawash.org

W a s h i n g t o n  H o t l i n eJenni Terry

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