Google Book Settlement Rejected

In a landmark decision 13 months in the making, Circuit Court Judge Denny Chin has sent the Authors Guild and Google back to the drawing board on the proposed Amended Settlement Agreement (ASA), suggesting that an appropriate remedy is to convert it from an "opt-out" to an "opt-in" agreement for copyright owners (see at bottom for more background on this distinction). An opt-in agreement requiring explicit consent from copyright owners would essentially erase the category of orphan works covered by the settlement.

While the ASA would have given libraries unprecedented access to a vast corpus of copyrighted but difficult to collect materials, the settlement would also have unfairly given "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," according to Chin's rejection [PDF].

Even as Google continues scanning materials (some 15 million books, as of December 2010), the possibility of a free Google Book Search Public Access Service terminal in every public and academic library appears to go on hold, at least until a new settlement agreement is proposed. However, many librarians have cited the public terminal provision as a potential logistical nightmare; the Urban Libraries Council said "[t]he settlement's commitment to one free terminal per public library building is admirable but unworkable."

Under the ASA, since Google would control access to the corpus of materials governed by the Book Rights Registry, they would then have the ability to track and study that usage, a significant point of contention for privacy advocates. Chin somewhat downplayed those concerns, however, writing: "the privacy concerns are real. Yet, I do not believe that they are a basis in themselves to reject the proposed settlement." Instead, he essentially takes the ASA at its word in regard to the safeguards and privacy provisions made.

Meanwhile, Chin noted that class members such as academic authors—whose goals for the dissemination of their work differ from commercial author and publisher interests—were not sufficiently represented.

Finally, in what may be his broadest conclusion, Chin agreed with the assertion of many library advocates that nonpublic stewardship of orphan works would not be in the public's best interest: "The question of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties."

According to Settlement watchdog James Grimmelmann of New York Law School (via his ongoing Twitter commentary), "[t]he opinion is peppered with quotes from different objectors. Chin is using citations to demonstrate broad-based opposition."

If the settlement had been approved, it would have created what some had taken to calling "The Last Library," the de facto corpus of materials made available to most Americans. For now, with the rejection of the settlement agreement, efforts like the HathiTrust and the still-nascent Digital Public Library of America will in the meantime be libraries' best chance for broad access to a wide variety of books and other digitized materials.

A status conference has been scheduled for April 25, 2011 in New York City; look for more updates on the case and implications for libraries in the coming days.

Predicting the "opt-in" angle
From LJ's previous coverage, see this exchange between Judge Chin and the lawyer from the Authors Guild at a Google Settlement Fairness hearing in February 2010, where Judge Chin seems to have anticipated the "opt-in" versus "opt-out" aspect of this recent decision:

If the settlement were opt-in, Chin suggested, channeling some of the objectors, "you'd eliminate a lot of objections."

"You wouldn't have a settlement," [attorney Michael Boni, representing the Authors Guild] responded.

Chin said that's because "Google wants the orphan books."

"It's a myth," Boni said of the term. "It's a phrase used as a political football."

He said that close to 620,000 out of print books had been claimed, simply from the notice program, and that the Book Rights Registry contemplated by the settlement would "find a lot of the parents... and it's going to benefit everybody."

He added that inserts—contributions to books—could be "turned off" by their authors and pointed out that academic authors concerned about access can set the price at zero.