In a 48 page opinion judge Chin has rejected the settlement.  Here is the summary from page 1 of the actual opinion:

Before the Court is plaintiffs’ motion pursuant ,toRule 23 of the Federal Rules of Civil Procedure for final approval of the proposed settlement of this class action on the terms set forth in the Amended Settlement Agreement (the “ASAH). The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not. While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action – – which was brought against defendant Google Inc. (“GoogleI1)to challenge its scanning of books and display of “snippets” for on-line searching – – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give 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.

Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied. The accompanying motion for attorneys’ fees and costs is denied, without prejudice.

You can find the full opinion here  Thanks to BookNet Canada for the link.

The court, in it’s conclusion said that the settlement might work if it were changed from an “opt out” to an “opt in” settlement.  It denied the motion for approval without prejudice, meaning that it will reconsider the settlement if the parties can renegotiate a revised agreement.

He based his decision on the following bases, all taken together:

The establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court and would release claims well beyond those contemplated by the pleadings. page 24

That the class of plaintiffs have not adequately represented the interests of certain class members. page 28

That the settlement infringes on the Congress’ power to address copyright issues.  page 30

That the opt-out provisions would grant Google the ability to expropriate the rights of copyribght owners who have not agreed to transfer those rights. page 31

That there are anti-trust concerns, in that the settlement would give Google a de facto monopoly over unclaimed works.  page 36

That other nations object to the settlement, contending that it would violate international principles and treaties is yet another reason why the matter is best left to Congress.  page 45




  1. Common Sense and the law prevailed.
    The proper venue to debate and allocate those rights is in the Congress.
    Bear in mind that, having rejected the settlement, the judge now forces the case to trial; he just rejected the closed door-cabal from grandfathering themselves a commanding position in commercial ebook repositories.
    Me, I think that truly orphaned works belong in the public domain or an open non-profit repository, not making money for a giant advertising company. Maybe Congress will charter such a repository under the Library of Congress with the money freed up by defunding NPR. 😉

  2. I’ve been deeply involved in this dispute. I was one of seven authors whose letter to the court led to the four-month delay that provided time for opposition to develop to the point where the settlement was rejected. I’m one of the seven “certain authors” referred to in footnote 12 of the judge’s decision. The others are well-know. The others are much better know. I was the token “who’s he” writer.

    All along, the settlement faced two major problems.

    1. It was not only an abuse of US class action law, it tried to apply that law to the citizens of other country, including countries that don’t permit class action settlements. The U.S.-based Authors Guild with perhaps 8,000 members simply can’t fairly represent all authors on the planet. That’s one reason why the revised (and now rejected) settlement reduced the list of countries involved in the settlement to Angle-American countries (less NZ) who have laws similar to the U.S.

    2. There’s absolutely no way the settlement could be reconciled with the Berne Convention, which governs copyright law in virtually every country on the planet including the U.S. Berne makes no distinction between in-print and out-of-print books or between authors who’re reachable and so-called orphan authors. Those distinctions were a critical part of the settlement’s attempt to pull an end-around copyright law. Berne is a very European approach to copyright and explains the opposition of European governments to the settlement.

    I’ve said it over and over again. The roots of this issue lie in the fact that the Berne Convention has not been revised since 1979. Nothing in it takes into account over thirty years of technological change, including the near-instant global distribution of books digitally. Google’s self-serving schemes never were a proper answer. Berne simply must be revised in ways that are fair to all parties. That could take years, so we need to get moving now. Google in particular needs to abandon this foolish quest and get behind a revision to Berne.

    –Michael W. Perry, author of Untangling Tolkien

  3. So what you’re saying is that, instead of relying on established methods of copyright defense, we should instead just sit around forever hoping that someone changes the law?

    You’re talking as though Google could have just done whatever they wanted and nobody could have said “boo” about it. Historically, courts have been very favorable to established rightsholders; indeed, some would say they’ve been too favorable. Wouldn’t this be a great example of the courts working for the little guy?

  4. While google may have over stepped bounds in doing the scanning. It think it is an important work. For out of copy right books this give the world at large acces to materials they might never get a chance to see otherwise. For the orphans it gives us a chance to preserve them and find the authors potentially. Otherwise many might just slip into to void. As for new books, it does not let a person view the entire document, but it does give people a means of discovering the book that they might not have ever located. If were an author, I would want to make it easy as possible to find my book so that they can decide if they want it. It might even assist in curtailing piracy a bit in making it much simpler to discover and then buy the book from a legitimate source. I understand that this really does not blend well with current copy right laws. But I am truly doubtful the government would ever get around to making this possible in any form much less ever institute an organization to actually get it done. There is current rumblings to cut funding to NPR. How likely would it be for the government to set aside a large sum just to scan in documents? It just feels to me like people would rather let everything burn down rather than make any effort to preserve any part of the building. Excuse any typos please I am writing from my iPad and may have missed some of the autocorrections.

  5. The law says it is up to rights holders to decide when and how content is distributed.
    It does not have exceptions allowing unauthorized distribution just because it “would benefit a lot of people” or because somebody is too lazy to find the rights holder.
    There *is* however a popular (though not legal) term for people who engage in the unauthorized scanning and pubishing of somebody else content: pirates.
    Or, in legal terms: thieves.
    Google should cut their losses, fold this hand, and donate the scans to the library of Congress; let the politicians settle the issue. They have to be good for something.
    As near as I can tell, the only people disappointed with the judge are those who were drooling at all the “free” crapscans they were going to get from Google.
    Cause the plaintiffs still have their chance to get their pound of meat off Google’s hide.

  6. From a legal point of view this appears the correct decision. Unfortunately one of the consequences is that a potentially large number of works will be unavailable or only available via the darknet. Belief that politicians will speedily – that is within a few years – solve this issue seems quite unlikely.

  7. I agree that it should be up to the politicians to debate and decide the issue… which is unfortunate, because I also believe that our politicians aren’t up to the task, nor are they able to make any decisions that won’t be highly biased by whatever corporate interest puts enough jam on their bread.

    Nonetheless, if a final decision is not arrived at properly and openly, it will never be accepted by the parties involved. Like it or not, we need the governments to do this. And we, as citizens, need to get busy communicating with our representatives and impressing upon them how important it is to revise Berne to satisfy the 21st century, settle the digital copyright issue and allow fair-for-all commerce to continue.

  8. “Google should cut their losses, fold this hand, and donate the scans to the library of Congress; let the politicians settle the issue.”

    What if the rightsholder doesn’t want their work in the LoC? Why are you so willing to blatantly trample on the fundamental rights of the creator? Have you no decency, sir?


    Less flippantly, what about works where the rights status is difficult or impossible to establish? Works whose title has changed hands so many times that there may be no single entity that holds the rights–and multiple entities can show valid claims to the same rights? Do those works just vanish from the creative conversation due to legalistic zealotry?

    Look, I’m all for the support of copyright. But I think that most of the confusion comes from exactly the situation that Google is trying to solve! Since there’s no one single database of “who owns the rights for what media”, it’s often very difficult to establish who you need to ask to get the rights to use something, particularly older and obscure works.

    If you know that you have the rights to something–and you know that Google is doing this, which you damn well better know because the Internet has long since moved past Nerds Downloading Porn–then the situation should be easy. Go to Google, say “this is mine, stop making it available”, and you’re done.

  9. @DD: You may be making the same assumption that Google is; that these legal issues are non-issues, easily bypassed when it is convenient (for them). Legalities may not be pleasant, but they are necessary, and the onus should be upon those who want to bypass those legalities to provide a good reason why.

    Yes, it means more work will have to be put into freeing orphan works… but if it is posterity you’re concerned about, perhaps the fact that a work is orphaned is an indicator of how badly posterity needs it…

    Okay, that’s probably an unfair assumption. All the same, if Google wants to provide other people’s works, they should have to do the research required to free up those works, or find someone else who will or has already done so. After all, make no mistake that Google isn’t doing this for purely philanthropic reasons; this will earn them a profit through site traffic alone. No reason they should get something for nothing.

  10. “You may be making the same assumption that Google is; that these legal issues are non-issues, easily bypassed when it is convenient (for them). ”

    And you’re making the same assumption as Google’s opponents; that identifying and securing permission from the rightsholders is a trivial exercise, and Google isn’t doing it because they’re lazy.

    “perhaps the fact that a work is orphaned is an indicator of how badly posterity needs it…”

    Have you ever heard the term “glibertarian”?


    And legalities are necessary, but what is the legality, here? Is copyright infringement a crime or a tort? We have legions of bloggers and commentors and activists who’ve written volumes to the effect that it’s not criminal…does that change now that a big rich company is doing it?

    And if it is a tort, then it’s up to the injured party to initiate activity. No cry, no harm; no harm, no foul.

  11. Oh no, I know it’s not a trivial exercise. But it still must be done. (I refuse to listen to bloggers and activists and anonymous commenters, none of whom have legal credentials or impartiality, who debate what is and is not “legal.” We must have laws, those laws must reflect the reality of life, and when laws don’t serve, they must be changed… by legal professionals.)

    I also believe there should be a stated point at which, when prescribed steps A, B, C and D have been taken with no result, the law permits a decision by an impartial party on releasing that work… that way, works can still be released as long as a reasonable amount of work has been done to establish the owner; they won’t simply be lost if no owner is found. That, I believe, would satisfy the letter and the spirit of law.

  12. The so-called “orphan works” are by definition published in the US after 1923. (Works published before that in the US are in the public domain.) Although Google’s rhetoric often conflates “orphan” with “out of print,” true orphan works are those whose copyright owners cannot be identified. Google made no attempt whatever to identify those owners, despite Google’s powerful search capabilities. Also, Google has scanned millions of works that are in print, and many more that are out of print but that have easily locatable authors and/or publishers. The Settlement applies to ALL books published in the US before January 5, 2009.

    Many out-of-print books are really not that rare. And–very important–many are widely available in print form at libraries (and by inter-library loan) and in used bookstores (including many online venues such as Amazon Marketplace and eBay). The public is not being denied access to reading and learning from these books (or being entertained by them), but merely does not have permission to reprint them. “Not in electronic form” is not equivalent to “unavailable.” Furthermore, before Google determined that large amounts of money could be earned by selling massive numbers of “orphan works”–and ads next to them–few people were very interested in them. Google was one of the major backers of the two failed attempts at passing US “orphan works” acts.

    Note also, that many authors are reissuing their out-of-print books, after rights have reverted to them, as e-books or print-on-demand books. Publishers are also showing increasing interest in keeping older titles alive in e-format and/or POD format. The market has changed a lot since the suit was filed and is continuing to change. I think there is zero “public benefit” justification for Google’s massive and systematic violation of US and international copyright laws.

    I also opted out and cc’d my opt-out to the court. My message was very succinct. I said I did not want to have a publisher (Google) who massively violated copyright law and misled the public about it. By misled, I mean all the rhetoric about the so-called “universal library,” when in fact the rejected Settlement would have enabled Google to set up as an enormous publisher and bookstore, selling e-books, print-on-demand books, library subscriptions, and ads next to databases. Definitely a profit-making enterprise.

    Google does already have a legitimate e-bookstore and copyright holders can voluntarily sign up. All this was established outside the rejected Settlement and has been in place for some time. Google just isn’t getting permission to sell all those works whose copyright holders did not sign up.

  13. “I refuse to listen to bloggers and activists and anonymous commenters…”

    This is the part where you provide incontrovertible proof that you really are Steven Lyle Jordan, and that you have the kind of “legal credentials” you demand.

    If you’re not willing to engage with anonymous people on the Internet, then what are you doing in the comments section of a weblog?

    “We must have laws, those laws must reflect the reality of life, and when laws don’t serve, they must be changed… by legal professionals.”

    We must have laws, but we must also know what those laws are. Insisting that restrictions are more severe than they actually are is not useful.

    Frances Grimble: If an author is actively maintaining their copyrights then there shouldn’t be a problem here. Obviously you didn’t find it difficult to opt out. You’re making it sound like Google was sneaking around in the dark and refusing to tell anyone what it was doing, like it was trying to hide the fact that it was making all these works available.

  14. It is clear to me that the Court had no choice. It cannot make decisions for rights owners who are not aware of what is happening and who don’t agree to the action.

    I think Google tried to do an excellent thing, but overlooked the ridiculous amount of power that copyright has accumulated over the decades due to incompetent politicians who have rubber stamped the demands of the publishing industry without examination or public participation. In addition the development of the eBook market and the transformation of the ability of writers and copyright holders to self publish along with the growth of real alternative publishing in the guise of indie ePublishers is changing the paradigm so much that Google’s original vision is now much less needed that it seemed when they started their great project.

    It seems to me that Google should go ahead, if it chooses, with what it is doing for real orphan works. Should they ever reemerge they can challenge Google’s action. if they don’t they don’t.

    For works where there is a likelihood of the copyright holder emerging then they need to sit on the works for now and see how things pan out.

    It is clear to me that there is too much action going on in the sphere of out of print works, where the fact that they are out of print was a situation dictated to authors by Publishers, and not in the remit of those authors to correct. Now however they are in a position to reissue these works in eBook form.

  15. @DD: Yes, I am Steven Lyle Jordan; I have a name, my location is known, my credentials are not hidden or implied, and when I speak about something, I take full responsibility for it, and for any fallout created by it. Unlike people on the internet who go by pseudonyms, conceal every iota of their identity, and can freely lie, slander and obfuscate without fear of retaliation. I repeat, I don’t listen to people who purport to give me facts or question mine as they hide behind digital curtains.

    But enough about me.

    “We must have laws, but we must also know what those laws are. Insisting that restrictions are more severe than they actually are is not useful.”

    In the U.S., laws are available for any citizen to see. Restrictions may not be desired, but they are not placed there because authorities like to inconvenience people. They are there to uphold the letter (and hopefully the spirit) of the law. Your opinion of how “useful” they are might be colored by your lack of knowledge of the specifics of the law, or the fact that you consider your personal needs to be more important than the law (it seems to be a common complaint).

    I maintain that the law is designed to uphold the majority of society’s personal needs, which benefits society as a whole. If you want to quibble about the finer points of law… talk to a lawyer.

  16. Steven wrote:
    “Yes, I am Steven Lyle Jordan; I have a name, my location is known, my credentials are not hidden or implied, and when I speak about something, I take full responsibility for it, and for any fallout created by it.”

    Phew that’s a relief … I was worried you might be another member of the *Duck family or … worse !

  17. “Yes, I am Steven Lyle Jordan…”

    I don’t believe you. Prove it.

    And before you go crying about “useless discussions”, remember that you’re the one who brought this up.

    “Your opinion of how “useful” they are might be colored by your lack of knowledge of the specifics of the law…”

    This is actually a very funny thing to say, because it seems that it’s you who doesn’t understand the difference between a misdemeanor and a tort. Hint: one of these requires action by the injured party before anyone gets in trouble over it.

  18. @DD, I brought up the issue of people without legal credentials, discussing the finer points of legalities as if they are professionally knowledgeable in the subject. I’m certainly not doing that… mainly, because the differences between a misdemeanor and a tort are not germane to this discussion. The issue is Google’s right to hijack copywritten works, whether or not the owners can be found.

    So: You wanna get back to the issue at hand, already?

  19. “[T]he differences between a misdemeanor and a tort are not germane to this discussion.”

    They’re entirely germane, because copyright violation is a tort, which means that the rightsholder who is harmed is the only one who needs to care–and the only one who can care. It doesn’t matter what Google does with other people’s works; it only matters what Google does with your work.

    And, it appears, they provided you with an opt-out option, which you exercised, and they promptly removed your work from Google Books. So…where’s your beef, then?

  20. Actually, Google’s system would be hard-pressed to add my books, since they have never been in print; they are only ebooks, always have been.

    Just because my books aren’t a concern of this settlement, however, doesn’t mean I have no interest in this matter. My interest is that the law is not trampled, as so many consumers would like to see happen in order to get at all those potential ebooks. My opinion is that the judge helped prevent the law from being trampled, which I consider to be a good thing.

    I still believe the law, as-is, is archaic, and needs to be revised to account for digital documents. But I don’t believe savaging the law and ignoring copyright, as Google attempted, is the answer.

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