Judge Rejects Settlement in Google Books Case, Saying It Goes Too Far

March 22, 2011

The proposed settlement in the long-standing class-action lawsuit over Google's vast book-scanning project is dead, at least in its current form. In a ruling on Tuesday, the federal judge overseeing the case rejected the settlement, saying that it "would simply go too far," even though "the digitization of books and the creation of a universal digital library would benefit many." But he also urged the parties to consider revising the settlement, and suggested an approach that would deal with his major concerns.

The case goes back to 2005, when the Association of American Publishers and the Authors Guild sued Google, asserting that its book-digitizing violated copyright law. The parties to the case reached a settlement agreement in 2008, a revised version of which was filed in late 2009. That "Amended Settlement Agreement" is what was rejected today in a ruling from the U.S. District Court in Manhattan by Judge Denny Chin. (Judge Chin was a member of the district court when the case came before him in 2005; he is now a federal appellate judge on the U.S. Court of Appeals for the Second Circuit.)

In his 48-page ruling, Judge Chin concluded that the settlement as proposed "would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission." He said the settlement would have not only released Google "from liability for past copyright infringement" but from future liability as well, and it would "grant Google the right to sell full access to copyrighted works that it otherwise would have no right to exploit."

As it stood, Judge Chin wrote, the settlement would give Google "a de facto monopoly over unclaimed works," sometimes called orphan works, whose copyright owners aren't known or can't be found. He said federal lawmakers rather than private entities ought to figure out what to do those works.

"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," he said. Under the settlement, Google would have created a Book Rights Registry to help identify who has claim to which works and to compensate rights holders for use of copyrighted material.

Problem With Opt-Out Approach

Judge Chin also raised doubts about how fully the named plaintiffs represented the larger class of authors and publishers who would be covered by the settlement. He pointed to "the substantial question" of "antagonistic interests between named plaintiffs" and other authors and publishers.

"The academic-author objectors, for example, note that their interests and values differ from those of the named plaintiffs," the judge said. He went on to quote from a statement submitted by Pamela Samuelson, a professor of law at the University of California at Berkeley, who wrote that academic authors "are committed to maximizing access to knowledge," while the plaintiffs "are institutionally committed to maximizing profits."

In sum, Judge Chin concluded, the settlement does not meet the "fair, adequate, and reasonable" standard he is charged with applying. But he pointed out that many of the concerns he raised would be dealt with if the agreement, referred to as the ASA in the ruling, required rights holders to opt in—by asking to have their works scanned and included in the Google Books project—rather than forcing them to opt out. "I urge the parties to consider revising the ASA accordingly," the judge wrote.

The named plaintiffs released statements on Tuesday in response. While the decision "is not the final approval we were hoping for, it provides clear guidance to all parties as to what modifications are necessary for its approval," John Sargent, chief executive of Macmillan, said on behalf of the publishers' association. "The publisher plaintiffs are prepared to enter into a narrower settlement along those lines to take advantage of its groundbreaking opportunities. We hope the other parties will do so as well."

The Guild shared brief comments by its president, the writer Scott Turow. "Although this Alexandria of out-of-print books appears lost at the moment, we'll be studying Judge Chin's decision and plan on talking to the publishers and Google with the hope that we can arrive at a settlement within the court's parameters that makes sense for all parties," Mr. Turow said.

Meanwhile, Google's managing counsel, Hilary Ware, described Judge Chin's ruling as "clearly disappointing," according to a report on the publishing-news blog GalleyCat. She added that "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 U.S. today. Regardless of the outcome, we'll continue to work to make more of the world's books discoverable online through Google Books and Google eBooks."