I’ve been following with interest the ongoing saga of the Google Book Settlement. In 2005, Google was sued for copyright infringement by the Association of American Publishers and the Authors Guild. In October 2008, Google settled the suit with the plaintiffs, and the agreement was subject to preliminary approval by a supervising judge that same year. To say that the agreement caused a stir in legal and technological circles is to understate the impact that it had. From the start, the settlement was subject to severe criticism from consumer groups, legal scholars, authors and various stakeholders. The concerns were varied, ranging from straightforward copyright issues, passing through the creation of a virtual monopoly in orphan works. The agreement was deemed heavy-handed, a misuse of Google’s market power to obtain concessions from author’s representatives that were not really clued into the implications of what they were giving away. But more importantly, the agreement established an opt-out regime, if an author did not want to be part of the settlement, they needed to express it to Google, which seemed inherently unfair.
After the preliminary approval and the large number of complaints against the agreement as stated, Google presented a modified settlement attempting to curb some of the criticism. I have to admit that I was expecting the modified settlement to receive a prompt approval as well, but as the time passed and no authorisation was forthcoming, doubts began to arise. Now Judge Chin has rejected the settlement in an extremely interesting decision (for a more in-depth look at the ruling, see James Grimmelman’s excellent summation). The decision can be summed briefly however, Judge Chin was seriously concerned that the settlement gave too much power to Google, and he noted that the settlement had prompted several concerns, including copyright, antitrust and privacy issues. Specifically, he commented that the agreement created an opt-out regime, and recommended that the parties should strive to make it an opt-in.
One of the most interesting parts of the ruling is that Judge Chin enumerated several worries held by commentators and authors with regards to the agreement on specific issues. With regards to orphan works, Judge Chin views the agreement as entering legislative territory. He says:
“First, the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court. The ASA would create, for example, the Registry and the Fiduciary. Together, they would represent — purportedly on an independent basis — the interests of Rightsholders, including those who have not registered but are covered merely because they did not opt out.The questions 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. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.””
In another paragraph he discusses the very serious problems that many of us noticed from the start, namely that the settlement could violate international copyright law because it exported an agreement established specifically for U.S. authors, but would affect also international authors. He commented:
“Many foreign objectors express concern as to whether the ASA would violate international law, including the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights. Indian authors and publishers, for example, object that the ASA “continues to provide Google with sweeping rights to exploit works of Indian authors/publishers under copyright protection without their express permission/consent, a violation of international and Indian copyright laws.””
I have to admit that I have always liked the idea of the Google Books project, but I agree with the critics of the settlement as it went overboard and gave too much power to Google. Hopefully we will now get an agreement that will strike some balance between the public interest of seeing such large digitisation project continue, and the interest of authors to have proper remuneration arising from the commercial exploitation of their works.
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