The IPKat's friend Annsley Merelle Ward (Gallant Macmillan LLP) has been busily composing some topical and pertinent thoughts on the latest developments in the Google Book Search saga. She writes:
"5 May 2009 had been fast approaching for many authors and publishers. It was to be the day that authors and publishers in the United States would have needed to decide whether to “opt in” or “opt out” of a compulsory licensing scheme with Google Inc as the main beneficiary – that is, of course, if authors and publishers could have been bothered to analyze the extensive 385 page Google settlement agreement first. This past Tuesday, however, saw a flurry of judicial and governmental intervention surrounding the controversial settlement agreement.You can read Copyright, Content and Class Action Lawsuits: A Debate on the Google Book Search Settlement at the Library of Congress here
Five years ago, Google begun a project focusing on the digitization of the University of Michigan’s library. As a result, a class action lawsuit was brought by the Association of American Publishers, the Authors Guild, and other authors and publishers in 2005 alleging that Google’s scanning of their books from the library was an infringement of their copyright. In November 2008, an out-of-court settlement was reached between the parties. If approved by the federal court, the settlement would permit Google to digitize, for internet publication, out-of-print books for a multitude of permitted acts such as sales, advertising, reading, and third-party licensing. Revenue earned from these uses would be shared between the parties, with Google standing to earn millions (37% of all revenue earned). Google would become the exclusive licensor of millions of orphan works. I am sure that the proponents of the previously proposed Orphans Work Bill will be equally concerned by Google's unilaterally agreed monopoly over orphan works (Side note: I think Google was very cunning with regard to Orphan Works – it shows that where there are no legislative mechanisms for the use/licensing of orphan works, large corporations such as Google, are able to step in and act in place of legislative authority to the probable detriment of millions of orphan work users).
Authors and publishers not party to the original class action lawsuit, as well as the Internet Archive and Consumer Watchdog, heralded the outcome as inherently unfair, eliminating a system of individual bargaining power laid down by the U.S. Constitution in favor of a “single publisher monopoly power to herd all of us into its list”. (Lynn Chu of Writers Representatives writing in the Wall Street Journal).
On Tuesday it was announced that the Justice Department has begun an inquiry into the antitrust implications of the settlement after weeks of discussions between the aforementioned groups in opposition of the settlement. A Justice Department inquiry does not necessarily mean that the department will automatically oppose the settlement but it signifies to the parties of the agreement that there are genuine concerns to be investigated.
In an unrelated action also on Tuesday, Judge Denny Chin of Federal District Court (NY) who is supervising the settlement, extended the deadline for authors to “opt-in”/”opt-out” and for other parties to oppose the settlement or file briefs to 5 September 2009. This has had the effect of the original fairness hearing of the settlement on 11 June is to be extended until 7 October 2009 at 10:00 am (Courtroom 11A of the United States District Court for the Southern District of New York at 500 Pearl Street, NY, NY if anyone is interested in attending).
Publishers, authors, and copyright lawyers alike will be eagerly anticipating any official announcements from the Justice Department in the coming weeks".