by Steve Mettee, IBPA Board Treasurer
Federal Judge Denny Chin, after 13 months of pondering, rejected the proposed amended settlement agreement in the Google Books class action lawsuit.
If you don’t recall…
In 2005, Google began systematically scanning every book they could find. A number of august university and public libraries stepped forward to allow this.
Both copyrighted public domain material was included.
While the libraries would be allowed complete access to the digital copies, Google, at the time, said their goal was simply to allow snippets of each book to be accessed in a Google search.
Some people complained.
Google yelped, “Fair use!”
Everyone wasn’t in agreement. Suits were filed.
The plot thickened when Google announced they would begin selling copies of any out-of-print book they had a scan of unless the copyright owner objected. These works were given the handle “orphaned works.”
If the rights owner identified himself, and agreed to Google’s terms, Google would share the revenue. A nonprofit Book Rights Registry was to be created to receive the right’s owner’s share if no rights owner stepped up. If the rights were in dispute or unclear, the Registry would play arbitrator. If I recall, there was to be a small fee for this.
Some felt it was unfair to have to opt out of Google’s program. Copyright law is pretty clear on this. Permission must be granted prior to use.
More people complained.
More attorneys were enriched.
Feathers and fur flew. The Authors Guild and the American Association of Publishers joined the fray.
Time passed. Speculations abounded.
Attorneys were further enriched.
The Authors Guild, the AAP, and Google forged a settlement. It was later amended.
In 2010, Judge Chin began his deliberations on the amended settlement. His goal was to be sure the settlement was fair, adequate and reasonable. His long-awaited decision came on March 22. Chin ruled it wasn’t fair, adequate and reasonable.
Here are some of the judge’s concerns.
• The classes that were supposed to be represented in the class action suit were not broadly enough represented. The Authors Guild has about 8,000 author members, the AAP about 300 publisher members. Hardly complete representation of the hundreds of thousands of rights holders.
• An opt-out system fashions an involuntary usurpation of rights. International law came into play here since foreign authors would also have to opt out.
• Antitrust comes into play also. The settlement gave Google a “de facto monopoly on orphan works.”
• Individual privacy is also a concern. Google would get a clear window on what people were viewing and for how long.
The judge’s suggestions included:
• Make it an opt-in rather than an opt-out program.
• Set up systems so others have more access to Google’s repository of digital works.
• Send the orphaned works question to Congress. (The question has gone before Congress before but failed move through to law.)
What will happen now?
It’s anybody’s guess, but here are some thoughts being bandied about:
• Google may start lobbying Congress. What they can’t get by fiat, they may be able to get by cozying up with your local congressman.
• Google may admit their audacity and be content that they have already collected a huge database of rights holder information from those who registered with Google Books while the case was being deliberated and be happy with an opt-in program going forward.
• Chin’s ruling may be overturned. (The legal pundits say Chin was deliberate in his wording making this outcome unlikely.)
• The parties may go back to the drawing board. The Authors Guild and the AAP appear willing to do this. Google, at this writing, simply says it is “disappointed.”
What we do know for sure will happen:
• Large organizations, governments included, will continue to assault individual rights.
• Attorneys will continue to be enriched.
Just a write thought.