In a version of Dickens’ Jarndyce vs. Jarndyce, we now are approaching the seventh year of the copyright infringement lawsuit againstGoogle because of its unauthorized digitizing of copyrighted works. (I addressed this topic in a previous post.)
Briefly, in 2005 the Author’s Guild and other plaintiffs filed a class action lawsuit against Google for its “Book Search,” alleging that Google violated the copyrights of authors and publishers by scanning their books, creating an electronic database, and displaying short excerpts without the copyright owners’ permission. Google defended its practice by saying it was “fair use” (it’s not).
In October 2008, the class action was settled, subject to court approval. It was later amended by the parties (the ASA, “Amended Settlement Agreement”). The settlement terms are complex, but essentially involve a system whereby any author owning copyright could “opt out” of the scanning scheme, and those who did not opt out would receive some compensation from Google’s advertising revenue. This settlement was opposed by the U.S. Department of Justice (DOJ), mainly because of antitrust concerns.
Then, on March 22, 2011, over a year after a February 2010 “fairness hearing,” federal Judge Denny Chin rejected the proposed class settlement, primarily because of the strong negative response to the settlement both by authors and the DOJ. He ruled: “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” settlement. I urge the parties to consider revising the ASA accordingly.”
What’s Next? Google isn’t saying. It could, of course, just terminate the book scanning effort entirely, but that’s not in character, and nothing in Judge Chin’s ruling prevents Google from continuing to scan copyrighted books (he only denied the proposed settlement of the copyright infringement lawsuit). Or Google could appeal the ruling to a higher court – the Second Circuit Court of Appeals — to which, interestingly enough, Judge Chin has recently been appointed. This option would be very Jarndyce-like, as it would consume another couple of years, and most likely the appellate court would confirm Judge Chin’s ruling and the parties would be in the same place. Or the parties could proceed to trial – a very costly effort that might result in a landmark decision about new media.
Much more likely, in my opinion, is that the parties adopt Judge Chin’s suggestion to revise the settlement into an “opt-in” system, rather than including all books by default. Google already scans millions of public-domain works, and makes the full text available through Google Book Search. Most publishers now actively work with Google to ensure their new books show up in Book Search in order to promote sales of digital copies. The only thing Google loses from an opt-in system is the right to scan in-copyright, but out-of-print books (unless the author agrees). But for most out-of print authors, the small revenue stream from the Google settlement would likely induce an “opt-in.”
For full text of Judge Chin’s opinion, go to (http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115).
© 2011 Daniel Steven