Illicit Google Books Sale Catches Up to Publisher

     (CN) - A publisher infringed on the copyright of a former Rutgers University professor by providing Google with electronic copies of his books, a federal judge ruled.
     Soon after joining the Rutgers faculty in the 1970s, Dr. Ivan Van Sertima founded and for 30 years headed the Journal of African Civilizations, which "has been adopted as part of the curriculum of various schools and institutions," according to the complaint.
     In the early 80s, Van Sertima agreed to have Transaction Publishers, an on-campus company, print, distribute and sell 10 of his copyrighted books, including "Blacks in Science," "Black Women in Antiquity," and works on African presence in early Asia, America, and Europe.
     Jacqueline Van Sertima, who took over the journal after her husband's death in 2009, said the initial agreement required the professor to pay for production while Transaction assumed other costs.
     There are no records to support this claim, however. She said the publisher was later required to pay for production in return for physical copies to sell royalty-free.
     Transaction said, on the other hand, that it reverted to an undocumented royalty agreement whereby the professor received 5 percent of net sales.
     Van Sertima's widow and the journal eventually sued the publisher, alleging that the parties never discussed or agreed to a royalty-structured contract once Dr. Van Sertima stopped requesting copies of books in the early 2000s.
     They claimed that Transaction instead "took advantage of Dr. Van Sertima's declining health to continue earning income" without paying the plaintiffs or providing them with books to sell.
     The publisher also allegedly gave Google copies of Van Sertima's works without permission for electronic previewing in the late 90s, and the website sold 25 of them in 2011.
     Although Transaction offered to pay the plaintiffs the accrued royalties in 2008, it never delivered, according to the complaint.
     U.S. District Judge Susan Wigenton awarded the plaintiffs partial summary judgment in an unpublished ruling on Dec. 11.
     "Nothing in the record indicates that defendant was authorized to copy, sell, or publish the works in electronic format at any point," Wigenton wrote.
     While there is no documentation to support that a nonexclusive publishing license existed, Wigenton said "the undisputed facts indicate that defendant did engage in copying, selling, and/or publishing the works in electronic format for which it did not have authorization or ownership."
     A dispute of material facts exists, however, regarding the physical publications.
     "There is no indication in the record that defendant was ever obligated to or had the practice of providing books to plaintiffs," Wigenton wrote. "Additionally, the parties did not discuss whether defendant should continue to print and sell the books after Dr. Van Sertima stopped picking up the books."
     The court also refused to award statutory damages.
     "The record demonstrates that the parties had a longstanding relationship, defendant attempted to pay royalties to plaintiffs, and even now defendant has no objection to delivering its remaining inventory of the works to plaintiffs," Wigenton wrote. "Nothing in the record suggests that defendant's actions were malicious or willful in nature. Accordingly, plaintiffs' request for statutory damages, maximum or otherwise, is denied."