Google takes it on the Chin

The bigger they are, the harder they fall:
but might there still be a settlement?

In a decision which has attracted much satisfaction, considerable attention and little surprise (at least among many authors, copyright enthusiasts, cynics and Google-bashers on the European side of the Atlantic), Federal Judge Denny Chin rejected the class action settlement which Google had painstakingly reached with a coalition of authors and publishers.  The proposed settlement, the judge felt, would grant Google significant rights to exploit entire books, without permission of the copyright owners,giving the world's most omnipresent corporation a significant advantage over competitors -- rewarding it for engaging in wholesale copying of copyright works without permission [Yes, says Merpel, but isn't that exactly what it was supposed to do?].

The 2009 settlement proposal would have left Google free to create a registry of books [but isn't it doing that anyway?], so long as it paid a paltry US$125 million to those people whose copyright-protected books had been scanned and to locate the authors of scanned books who had not come forward. Google would also have enjoyed what has been described as "immunity from copyright laws, allowing the company to distribute millions of books on the Internet in exchange for sharing the revenue it would generate" (Bloomberg).  The IPKat was horrified, at a conference in December 2009, to hear publishers' representatives urging that the $125 million offer -- about the price of three top-class footballers -- should be accepted since (i) it was "the only offer on the table", (ii) there wasn't anyone else around who was going to offer a better deal and (iii) in the current sorry state of the book publishing industry any subsequent offer was likely to be lower, not higher.

One of the things which the IPKat found most unpalatable about the settlement was that it required authors to opt out if they didn't like it, rather than getting them to opt in if they did. Judge Chin seems to think so too, so now it's Google which is considering its options.  Hillary Ware (a managing counsel for Google) is reported as saying: "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".  It does, but so too does the abolition of copyright.  And there are lots of other things that are hard to find in the U.S. today -- a decent cup of truly hot coffee being one of them -- but we don't go around saying that people's personal property rights should be trampled on or subject to opt-outs in order to make it easier for people who have no entitlement to them to gain access to them.

The IPKat is fairly confident that this is not the last we've heard of the settlement.  He bets that it will get through eventually --but on a very different basis.  His position has always been that the copyright issues are less of a problem than those of absence of competition, and it is those which will shape the global outcome.

Sources and further reading:
The Authors' Guild et al v Google Inc, 05 Civ. 8136 (DC), 48 pages
The proposed settlement agreement here, 323 pages
Google Book Settlement website here
"GBS Update: the Settlement Is Dead; Long Live the Settlement Negotiations!", Scrivener's Error
"Federal Judge Rejects Google Books Settlement, But Leaves Door Open to Revision", ACS Blog
Giovanna Occhipinti Trigona, "Google book search choices", Journal of Intellectual Property Law & Practice (2011) 6(4): 262-273 (abstract here)
"Defeated Book Settlement 'a Victory for Copyright', The Bookseller.