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Judge Rejects Google Books Settlement

A judge has rejected a proposed settlement between Google and a coalition of authors and publishers related to Google’s unauthorized scanning of copyrighted books (see “Authors and Publishers Settle with Google Book Search,” 29 October 2008). The rejection may lead to a narrower deal in which all creative parties’ rights are protected.

Why should you care about this? Because had the settlement been approved, it would have given Google a unique position in which it was immune to lawsuits by authors and publishers while simultaneously being granted control over an enormous set of books. No other firm, whether Amazon, Apple, Microsoft, or a company not yet in existence, could obtain the same terms.

The agreement would also have granted Google the right to scan and sell works that were protected by copyright but for which the owner of the rights couldn’t easily be found. And it set up a consortium — really a cartel — of rights owners who would set non-negotiable prices for works in electronic form.

All of this would have put Google in charge of ebooks forever. It would have limited access, kept prices high, and locked out publishers and authors who didn’t want to be part of this system.

Google would have given extremely limited free access to libraries and universities, with one “terminal” per branch or per few thousand enrolled students. The free availability to libraries and universities was hailed as a flowering of access to human knowledge — but the usage limits were rarely cited.

I wrote extensively about this in “Google Books Settlement Hits Snags” (7 September 2009), noting three main objections raised by parties including the Registrar of Copyrights and foreign publishers. Two of the three points were cited in the summary of the settlement rejection by the judge. Were the agreement approved to settle the suits, Judge Denny Chin wrote,

“…it would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA [Amended Settlement Agreement] 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 third major point, about this agreement affecting foreign publishers’ works without their involvement in the settlement, was also mentioned by Chin in the full decision.

Chin left the door open to a much narrower way to resolve the lawsuits. He wrote,

“…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’ settlement.”

(You can read a detailed and approachable summary of the decision at The Laboratorium, run by a New York Law School professor, and find a link to the PDF of the decision. Some of his and his students’ work was cited by the judge.)

The opt-in approach is not nearly as positive for Google, because it doesn’t give the company access to millions of works where an author or publisher can’t be found to give permission. The Library of Congress and Registrar of Copyrights had floated a proposal to solve the issue of so-called orphaned works, creating a process that outfits like Google could follow to use works legitimately if an owner could not be found. In a bit of irony, that proposal stalled in Congress because the Google Books lawsuit was underway. Now it may be able to advance.

There is no good argument against the notion that there is a vast public benefit in making millions of titles available in searchable electronic form. As the only organization willing to step up to the plate and try to do that, Google should be applauded. However, the settlement undercut that public benefit both by giving Google a privileged gatekeeper position that would eliminate all competition in the field and by creating a price-setting cartel of authors and publishers.

So in the end, Judge Chin’s decision is a good one, and puts the decision about what happens to one’s creative works back in the hands of the creators, rather than unrelated third parties. Let’s hope that the parties can take the common ground achieved thus far and work toward a new settlement that maintains individual control over one’s works while still enhancing the public sphere.

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