Association of American Publishers:

Washington, DC, March 22, 2011 —Speaking on behalf of the publisher plaintiffs (The McGraw-Hill Companies, Inc.; Pearson Education, Inc; Penguin Group (USA) Inc.; Simon & Schuster, Inc.; John Wiley & Sons, Inc.; Association of American Publishers, Inc.; Harlequin Enterprises Limited; Macmillan Publishers Limited; Melbourne University Publishing Limited; The Text Publishing Company), John Sargent, Chief Executive Officer, Macmillan, issued the statement below.

It references the Judge’s decision which noted: “…The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement.”

“While the March 22 decision of U.S. District Court Judge Denny Chin on the Google Book Settlement Agreement that was filed on November 13, 2009 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. 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 Settlement has the potential to unlock online access to millions of out-of-print books in the U.S. and expand it for titles in-print while acknowledging and compensating the rights and interests of authors and copyright owners and enhancing our ability to distribute our content online.

Sargent noted publishers’ commitment to providing content in digital form is not tied to the Settlement.

“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. We believe that the provisions of the Settlement would give these efforts a tremendous boost and would open a world of opportunities for readers, researchers, authors, libraries and publishers for decades to come.

“For that reason, publishers are prepared to modify the Settlement Agreement to gain approval. We plan to work together with Google, the Authors Guild and others to overcome the objections raised by the Court and promote the fundamental principle behind our lawsuit, that copyrighted content cannot be used without the permission of the owner, or outside the law.”

National Federation of the Blind

BALTIMORE, March 22, 2011 /PRNewswire-USNewswire/ — Dr. Marc Maurer, President of the National Federation of the Blind, said: “The National Federation of the Blind supports access by the blind to the vast amount of knowledge contained in the millions of books available throughout the world, and we believe that the Google Books settlement is one way to achieve that access.  For that reason, we are disappointed that the court has rejected the settlement.  We will analyze the decision carefully and then determine our future course.”

On September 10, 2009, the National Federation of the Blind testified before the House Judiciary Committee that the proposed settlement between Google and authors and publishers regarding the Google Books project should be approved.  The Google Books settlement would have made millions of titles available to the blind and other Americans with print disabilities, providing more access to the printed word than the blind have had in all of human history.

Open Book Alliance

SAN FRANCISCO, March 22, 2011 /PRNewswire-USNewswire/ — The New York Federal District Court’s rejection of the Google Book Settlement is a victory for the public interest and for competition in the literary and Internet ecosystems.  The U.S. Department of Justice and the State Attorneys General who fought to protect consumers and competition should be applauded.  Judge Denny Chin‘s reasoned and thoughtful analysis was worth the wait.

In his decision, Judge Chin confirmed that the proposed settlement “would give Google a de facto monopoly over unclaimed works” and concluded that the proposed settlement “is not fair, adequate, and reasonable.”

In his conclusion, Judge Chin gave voice to the authors and creators who have long opposed this proposed settlement by urging the parties to consider revising the settlement to an “opt-in” structure.  While opt-in is a preferred structure, the Open Book Alliance (OBA) believes it requires complex changes to the proposed settlement and would not address the severe antitrust and privacy problems that the court describes in the decision.

“The ruling ratifies the objections of a diverse cross-section of voices who stood up to Google and its partners – from the Justice Department and State Attorneys General to authors and independent publishers to consumer and privacy advocates and members of the academic and library communities,” said Gary Reback, Counsel to the OBA.  “We urge the Justice Department to remain vigilant and continue in its role as a leader in protecting consumers and competition from an entrenched monopoly in online search.”

The Open Book Alliance looks forward to participating in a collaborative process that will focus on developing an open digital public library created to serve the public interest that respects the rights of creators while promoting innovation and competition.

About The Open Book Alliance

The mass digitization of books promises to bring tremendous value to consumers, libraries, scholars, and students. The Open Book Alliance works to advance and protect this promise. And, by protecting it, the Open Book Alliance asserts that any mass book digitization and publishing effort be open and competitive.  The process of achieving this promise must be undertaken in the open, grounded in sound public policy and mindful of the need to promote long-term benefits for consumers rather than isolated commercial interests.

The Open Book Alliance counters Google, the Association of American Publishers and the Authors’ Guild’s scheme to monopolize the access, distribution and pricing of the largest digital database of books in the world.  To this end, the Open Book Alliance promotes fair and flexible solutions aimed at achieving a more robust and open system.

Members of the Open Book Alliance include, American Society of Journalists and Authors, Council of Literary Magazines and Presses, Internet Archive, Microsoft, National Writers Union, New York Library Association, Science Fiction and Fantasy Writers of America, Small Press Distribution, Special Libraries Association and Yahoo!.



  1. I’ve read the Judge Chin’s decision. While he does leave open the door for another revision, it’s hard to see why the parties would be interested in one that meets the conditions he sets. Here are a few of the more important.

    I. Anti-trust. It can’t favor Google over any similar entity. What Google can do as a result of the settlement, anyone can do and those others won’t have to invest $100 million+ like Google.

    2. Copyright. Given the substantial opposition from authors, book display must be opt-in rather than opt-out. That makes millions of titles in the registry unlikely and no orphan texts.

    3. International treaties. It must conform the the Berne Convention and create no objections from European countries. That means no registration in order to opt-out requirements. It also means there’s no grounds for distinguishing in-print and out-of-print books.

    4. Federal Law. The settlement can only apply to books already scanned. It can’t license future scanning as violations of copyright. That, the judge says, would violate Rule 23 of the Federal Rules of Civil Procedures.

    At this point, Google, if not a winner is at least not the biggest loser. It can walk away out no more than what its legal fees and other actions have cost. This muddle means it’s spared the tens of millions it might have paid for all that unauthorized scanning of copyrighted texts.

    The Association of American Publishers and the Author’s Guild, however, are out the liability and damages they originally sought. Also the judge ruled that no legal costs are to be paid. For the AAP, those costs may be considerable. The AG’s lawyers, I believe, were working on contingency, so they’ll not get a penny. That may be a hint that the judge wasn’t impressed at how well those lawyers represented the interests of their class action ‘clients’–all authors. The AG will have to work to restore the trust of authors angered by the settlement.

    The university libraries involved may or may not be able to used the scanned volumes that Google created for them in some limited sense. That’d involve the argument that owning a physical copy bestows the right to loan out an equivalent number of digital copies, a bit like copying your music CD on to your iPod. Its unclear whether Google would continue to provide them with legal cover though and without that, they’re likely to be very cautious.

    The big winners are authors. As the judge noted, copyright law is clear that an author need do nothing to protect his copyright, not even opt out of a legal settlement. If he refuses to give permission, even if he does so by disappearing and making his books orphans, no set of circumstances can permit publication without his permission. Copyright really is the right to control copying.

    –Michael W. Perry, author of Untangling Tolkien

  2. @ Michael Perry: thanks, your summary is very helpful.

    If this is not appealed, I would say the next step is a law permitting it. With Google and the Publishers behind it, there’s plenty of lobbying dollars to get this thing rolling. Google could be protected by a clause along the lines of permitting it for those who had scanned the works themselves, or by tying permission to a deal with the publishers.

    Alternatively, (and especially since Google has the inside track with the White House, even to rumors that Eric Schmidt will be the next nominee for Commerce Secretary) the administration could be persuaded to put approval into a secret treaty, either one of the two they have floating around now, or a new one.

    Since the big money is in favor of this, I really don’t see something like legality stopping it. Where there’s a dollar more, there’s a way…

  3. If I own a copy of a book, can I scan it myself and read the scan on my computer? Why or why not?

    If Google buys a copy of each of those books, can they scan them and store them up? [I’m not asking if they put them online for us to read; that’s a separate issue.]

    If the Internet Archive owns a copy of a book, can it scan it and let it be checked out by a library patron?

    If a library buys an e-book from Overdrive, can it let it be checked out by a library patron? At last, a question I can answer: Yes.

The TeleRead community values your civil and thoughtful comments. We use a cache, so expect a delay. Problems? E-mail