In a stunning setback, Judge Denny Chin today rejected the Google Book Settlement, some 13 months after its final fairness hearing. “In the end, I conclude that the [Settlement Agreement] is not fair, adequate, and reasonable.” Chin set a date of April 25th for a status conference, and suggested his concerns with the agreement could be ameliorated with one simple change. “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.”
New York Law School professor James Grimmelmann, a close follower of the case, told PW the the numerous filings of objectors clearly made a significant impact on Judge Chin. “His opinion recites many of the objections,” Grimmelmann noted. “He was clearly swayed by what he saw as a broad base of opposition to the settlement from a diverse group of class members. He calls 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.
From Today’s Court Opinion:
OPINION: In the end, I conclude that the ASA is not fair, adequate, and reasonable. As the United States and other objectors have noted, may 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. The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement. The motion for an award of attorneys’ fees and costs is denied, without prejudice. The Court will hold a status conference on 4/25/2011, at 4:30 p.m. in Courtroom 11A of the Daniel Patrick Moynihan Courthouse. (Status Conference set for 4/25/2011 at 04:30 PM in Courtroom 11A, 500 Pearl Street, New York, NY 10007 before Judge Denny Chin.) (Signed by Judge Denny Chin on 3/22/2011) (tro)
Professor James Grimmelmann (New York Law School) has been studying, discussing, and writing about the Google Book Settlement since the beginning and he has posted some analysis via his Twitter feed.
Comments and Responses
“The gift that Google brought was raising awareness that access to literature has tremendous benefits,” said Peter Brantley of the Open Book Alliance, a group of companies and organizations that has opposed Google’s plan. “And that’s something that, as a society, we can work to achieve.”
“Regardless of the outcome of our discussions with publishers and Google, opening up far greater access to out-of-print books through new technologies that create new markets is an idea whose time has come,” said Mr.Turow. “Readers want access to these unavailable works, and authors need every market they can get. There has to be a way to make this happen. It’s a top priority for the Authors Guild.”
“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,” Hilary Ware, Google’s managing counsel, said in an e-mailed statement. “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.”
“For more than a decade, publishers have been making substantial investments to enable and enhance online access to content in accordance with copyright laws and we will continue to do so regardless of the outcome of the litigation.”
“He shoots down the settlement on three important grounds, which are the same three grounds that Google is under siege from around the world,” said Gary Reback, co-founder of the Open Book Alliance,
Judge Denny Chin of the United States Court of Appeals for the Second Circuit issued a long-awaited ruling Tuesday afternoon, rejecting a proposed settlement between Google and publishers and authors. It is the CIC’s understanding that Google will continue scanning CIC library materials (six member libraries, in addition to Michigan and Wisconsin, are currently sending content) under the terms of the CIC’s 2007 Agreement.
HathiTrust’s ability to fulfill our mission is and has been independent of approval of the Google Books Amended Settlement Agreement. The benefits we envision—improved discovery and full text search of our vast collections, services for users who have print disabilities, computational research, and broad public availability of works that are out of copyright or otherwise released by their copyright owners—are being realized and will continue to expand.
Given this ruling, the HathiTrust partners will continue providing comprehensive full-text search of the repository and uses of in-copyright materials that fall under sections 107 and 108 of U.S. copyright law: access for users who have print disabilities, and lawful uses of digital copies of materials that are damaged, deteriorating, lost or stolen, and not available at a reasonable market price. In addition, we will continue to pursue our extensive review of works published in the United States from 1923 to 1963, providing access to works that did not comply with copyright formalities of the time, and our work with authors and publishers who wish to open access to their works in HathiTrust. We will continue to strive to provide as much access as legally possible to materials in the repository, for discovery, reading, and computational research. We hope that the rejection of the Settlement will lead immediately to meaningful progress towards orphan works legislation.
It’s too early to speculate with some certainty what will happen next. In the meantime the American Library Association, along with Association of College and Research Libraries and the Association of Research Libraries, are working on a brief analysis of the Judge’s decision that will be made available soon.
In a February 2010 hearing before the Court, EPIC President Marc Rotenberg explained that this settlement would “turn upside down” well established safeguards for reader privacy, including state privacy laws, library confidentiality obligations, and the development of techniques that minimize privacy intrusions. Judge Chin determined that the proposed opt-out settlement was “not fair, adequate and reasonable.”
…we are disappointed that the court has rejected the settlement. We will analyze the decision carefully and then determine our future course.
Press and Blogosphere
Even as Google continues scanning materials (some 15 million books, as of December 2010), the possibility of a free Google Book Search Public Access Service terminal in every public and academic library appears to go on hold, at least until a new settlement agreement is proposed. However, many librarians have cited the public terminal provision as a potential logistical nightmare; the Urban Libraries Council said “[t]he settlement’s commitment to one free terminal per public library building is admirable but unworkable.”
Clearly, the plaintiffs and their attorneys have run up a huge legal bill for this lawsuit. They’ve been expecting an infusion of $34.5 million to set up the registry and another $30 million for attorney’s fees. It’s not clear how much has been spent on the registry so far, but it has registered claims for about 1.1 million books. This is potentially a very valuable resource, which, if put into play could greatly increase the possibilities for transactions of book rights.
Finally, in what may be his broadest conclusion, Chin agreed with the assertion of many library advocates that nonpublic stewardship of orphan works would not be in the public’s best interest: “The question 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.”
While the profit potential of the book project is not clear, the effort is one of the pet projects of Larry Page, the Google co-founder who is set to become its chief executive next month. And the project has wide support inside the company, whose corporate mission is to organize all of the world’s information.
“It was very much consistent with Larry’s idealism that all of the world’s information should be made available freely,” said Ken Auletta, the author of “Googled: The End of the World as We Know It.”
“Opt-in doesn’t look all that different from ordinary licensing deals that publishers do all the time,” said James Grimmelmann, a professor at New York Law School who has studied the legal aspects of the agreement. “That’s why this has been such a big deal — the settlement could have meant orphan books being made available again. This is basically going back to status quo, and orphan books won’t be available.”
“Even though it is efficient for Google to make all the books available, the orphan works and unclaimed books problem should be addressed by Congress, not by the private settlement of a lawsuit,” said Pamela Samuelson, a copyright expert at the University of California, Berkeley who helped organize efforts to block the agreement.
My understanding is that Google effectively cannot appeal this settlement rejection. It would need to present a new settlement proposal to the court. The judge has offered Google and the litigants that opportunity.