• by Wendy Davis  @wendyndavis, January 2, 2012

The Authors Guild and American Society of Media Photographers don't have the right to sue Google for copyright infringement of members' books or images, the search giant says in new court papers.

“The associations are not proper parties to this copyright infringement case because they themselves do not claim to own any copyright at issue,” Google argues. “Every copyright, and every alleged copyright infringement, is different. For that reason, claims for copyright infringement cannot be adjudicated, nor relief granted, without the participation of those who own the copyrights at issue.” 

Google's motion, filed in late December with the federal court in New York, addresses a lawsuit first filed by the Authors Guild in 2005. That organization, as well as the Association of American Publishers, alleged that Google infringed copyright by digitizing books. The American Society of Media Photographers filed its lawsuit in 2010; that group's case centers on images in books.

A proposed settlement was scuttled last year by U.S. District Court Judge Denny Chin.

That deal called for Google to fund a new book rights registry, and sell digital downloads at prices it sets with the registry. The deal was rejected largely due to concerns about so-called “orphan works” -- works under copyright, but whose owners are unknown. The agreement would have protected Google, but not other companies, from copyright infringement liability for publishing those works.

Critics, including consumer advocacy groups as well as potential rivals like Amazon, argued that this provision would have effectively granted Google a monopoly in orphan works. In addition, they argued that the problem of orphan works should be dealt with by Congress, and not on a piecemeal basis through individual lawsuit settlements.

Google's recent motion only seeks to dismiss the case brought by the Authors Guild and ASMP, but not individual authors who were named as plaintiffs. It argues that one of the key issues in the case will be whether digitizing the books is a fair use. The search giant argues that the fair use question must be determined on a case-by-case basis, and therefore can't be litigated by an association.

“Some books are highly creative; some are mere compilations of facts or quotations from other works which are subject only to the thinnest copyright,” Google says, adding that the same holds true for photos. “The court cannot analyze the nature of the copyrighted work unless the copyrighted work is before the court, and bringing each individual association member’s copyrighted work before the court requires the participation of those individual members.”