Google Settlement of Digitization of Books Derailed

March 24, 2011

A number of Guild members have asked me about the Google Settlement. Those who opted in saw an opportunity for revenue. Those who did nothing probably did not understand that by letting the deadline pass amounted to an opting out. Opt outers are part of a larger class that includes orphan works whose authors (after a reasonable search) cannot be found. As written, under the Amended Settlement Agreement (ASA) Google stands to gain a significant market advantage for orphan works. The question before Judge Chin (Southern District of New York) was whether the ASA was "fair, adequate and reasonable."

By decision posted on March 22 he concluded that it was not, although he suggested ways in which the ASA could be improved. I quote from the decision:

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action -- which was brought against defendant Google Inc. to challenge its scanning of books and display of "snippets" for on-line searching -- to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

The decision concludes,

In the end, I conclude that the ASA is not fair, adequate, and reasonable. As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an “opt-out” settlement to an “opt-in"s entitlement.... I urge the parties to consider revising the ASA accordingly.

Google is said not to be happy with an “opt in” model and there have been suggestions that as an alternative to settling the case with the Authors Guild it would support an amendment to the Copyright Act to deal with orphan works. Stay tuned.