March 23, 2011

Legal stunner: Judge rules against Google in Book Settlement case

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It’s been so long in coming, and so dreaded, that many of us in publishing were happy to think it was maybe just going to go away, but when a decision in the Google Book Settlement was announced late in the day yesterday it was literally, as a Publishers Weekly report by Andrew Albanese and Jim Milliot put it, a “stunning” turnaround of expectations: Federal Judge Denny Chin ended his thirteen-month consideration of the case and ruled most emphatically against Google, saying the settlement would have made the company a “de facto monopoly.”

As a New York Times report by Miguel Helft summarized it, “Google’s ambition to create the world’s largest digital library and bookstore has run into the reality of a 300-year-old legal concept: copyright.”

But the PW report detailed it more succintcly, noting that Chin found fault with the settlement — negotiated between Google and the Association of American Publishers, the Author’s Guild, and the American Library Association — on numerous fronts.

For one, he noted that the agreement “would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission.” For another, he noted that under the terms of the settlement Google could copy whatever it wanted and it was up to publishers to discover if their copyrighted work had been thus stolen and call it to Google’s attention. Decreed Chin, “many of the concerns raised in the objections would be ameliorated if the [settlement] were converted from an opt-out settlement to an opt-in settlement.”

Chin also said he was concerned about giving Google control over so-called “orphan” works — books still in copyright but out of print. The fact that such books are often in print in one country but not another made it an area of international concern, he said — something of concern to Congress, not to a private company, he said.

As he put it, the settlement “would give Google a de facto monopoly over unclaimed works.” and “would transfer to Google certain rights in exchange for future and ongoing arrangements, including the sharing of future proceeds, and it would release Google (and others) from liability for certain future acts.”

In short it was, to many of us, a completely unexpected stating of the obvious. What happened? According to the PW report, Chin was clearly “troubled by the high number of people — 6,800 — who opted out of the agreement.” PW cites New York Law School professor James Grimmelmann, who said Chin “was clearly swayed by what he saw as a broad base of opposition to the settlement from a diverse group of class members. He called out the forward-looking settlement issue in particular, but he also cites copyright and international and other issues, not just legally, but in terms of class opposition.”

What next? A Financial Times report by Richard Waters and Andrew Edgecliffe-Johnson says Google released a statement saying, “This is clearly disappointing, but we’ll review the court’s decision and consider our options. Like many others, we believe this agreement has the potential to open-up access to millions of books that are currently hard to find in the US today.”

So what does that mean? Will it, for example, stop the operations of the Google ebookstore, which has had so much trouble getting off the ground anyway? (Go ahead, pick a big title — say, David Foster Wallace‘s recently released Pale King — and see if you can find it on the Google ebookstore.) No one’s saying, but our bet is they’ll appeal. After all, depending on who you believe, Google has already scanned — as of now, illegally — between 12-15 million books.

Dennis Johnson is the founder of MobyLives, and the co-founder and co-publisher of Melville House. Follow him on Twitter at @mobylives

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