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The rejected Google e-books settlement: What it means and what comes next

March 22, 2011 |  5:20 pm

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More than a year after giving it preliminary approval, U.S. District Court Judge Denny Chin on Tuesday rejected the Google Books Amendment Settlement Agreement, yet left a door open for the parties to try for a revision. "The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement," he wrote.

What's more, in his decision, Chin detailed several possible revisions, providing a roadmap for the parties if they intend to attempt to revise the settlement.

Will they? It looks like they may try.

On Tuesday, one of the parties clearly stated that it was interested in revising the settlement. Speaking on behalf of the publishers that are plaintiffs in the case, Macmillan Chief Executive John Sargent said in a statement, "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."

Speaking for another plaintiff, the the Authors Guild, writer Scott Turow said something similar without going quite as far. "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," Turow said in a statement. "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."

In his descision, Chin wrote, "While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far." But he didn't stop there.

"Although I am persuaded that the parties are seeking in good faith to use this class action to create an effective and beneficial marketplace for digital books, I am troubled in several respects," Chin wrote. He brought up several key issues that seemed to point a way toward potential resolution of the agreement, including moving the issue of orphan works and international copyright issues to Congress, privacy concerns and inverting the structure of the ASA so authors interested in participating could opt in, rather than being included by default.

"We've all been waiting for an awfully long time," the Electronic Freedom Foundation's Corynne McSherry told The Times. "It is nice to get some degree of clarity." The foundation was among those that raised concerns about privacy issues not addressed by the settlement, and were mentioned in the judge's decision. "We think it is great that the judge recognized that the privacy concerns are real," McSherry said.

Privacy issues were among the specific objections included in the judge's decision, which McSherry described as "full of anecdotes and examples." Those specifics may provide attorneys for the parties a checklist of issues that should be addressed in a revised settlement.

Chin wrote, "In the end, I conclude that the ASA is not fair, adequate, and reasonable. As the United States Department of Justice 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." With the current opt-out structure, all authors are covered by the ASA unless they say otherwise; to create an opt-in structure would mean that participation would not be the default, but a voluntary decision to join in. Some had maintained that the opt-out structure turned traditional copyright on its head. Going from opt-out to opt-in sounds easy enough -- but would it be technologically easy to invert the already-built system? And would opt-in satisfy defendant Google, which created a system that was based on all parties being involved unless they said otherwise?

Another aspect the judge addressed was "orphan works" -- those with no clear copyright holder -- which had been the focus of some concern. Under terms of the ASA, they would fall into Google's hands and some revenues would go into a copyright clearance center. "The questions 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," the judge wrote.

That's a good point. Too bad Congress hasn't proved particularly adept at handling copyright issues. 

Chin iterated a number of concerns related to international copyright, which varies by nation. "The fact that other nations object to the ASA, contending that it would violate international principles and treaties, is yet another reason why the matter is best left to Congress."

A significant concern for the judge seemed to be in line with several objections made relating to the way the ASA, while deciding issues within the case, would also affect business going forward. "They contend that the case is about the scanning of books and the display of 'snippets,' while the ASA will release claims regarding the display and sale of entire books." That speaks to the core of the case; will the lawyers involved find a way to address those concerns in a revised settlement agreement?

Another point the judge addressed was privacy. "Certain additional privacy protections could be incorporated, while still accommodating Google's marketing efforts," the judge wrote in his decision. "We think it's great that the judge recognized that privacy concerns are real," said McSherry of the EFF.

In the decision, the judge castigated Google's initial behavior in scanning copywritten works from university libraries, a project it undertook in 2004. "Google did not scan the books to make them available for purchase, and, indeed, Google would have no colorable defense to a claim of infringement based on the unauthorized copying and selling or other exploitation of entire copyrighted books. Yet, the ASA would grant Google the right to sell full access to copyrighted works that it otherwise would have no right to exploit. The ASA would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works. And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions."

What does Google say? The Associated Press reported that Google's managing counsel Hilary Ware called the decision "disappointing" and said the company was considering its options.

"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," Ware said in a 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."

The judge's decision closed with the notice that it would hold a status conference April 25 in New York. 

-- Carolyn Kellogg

Photo: Screen image of the Google logo from January. Credit: Karen Bleier/AFP/Getty Images

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