A plan to create a vast digital library by scanning millions of books without explicit copyright permission has been thrown out in a long-awaited ruling issued today by New York District Court Judge Denny Chin.
The ruling concerned the long running Google Books Settlement, a class action orginally started in 2005 when authors and publishers in the US sued Google for copyright infringment of works scanned as part of its large-scale scanning of books held in major library collections. To date, Google has scanned 12 million books, mostly without the permission of rightsholders.
In his written judgement, Judge Chin highlighted the issues and his concerns that led to the ruling. Among his concerns were the far-reaching scope of the settlement and the impact on fundamental rights granted under copyright. As he pointed out, unlike most other class settlements, this one was not limited to paying for past wrongs but would, in fact, grant a range of future uses to Google without the explicit consent of rightsholders. Chin saw these as matters for government rather than the courts to decide.
The creeping scope of the settlement is clear when you consider that the original action began as a “fair use” claim against Google’s publishing small snippets of text from the scanned books in search results. But in the process of coming up with a negotiated settlement, it morphed into a much broader agreement which let Google off the hook for copyright infringement over the scanning and publishing of snippets, and granted Google significant rights to commercialise these scanned works, sharing revenue with rightsholders.
The broad scope also raised anti-trust issues. While most of these rights were granted non-exclusively, there was plenty of concern that the advantages it conferred would make Google a de facto monopoly provider of many of these works and confer competitive benefits in other markets such as search.
The agreement’s broad scope dragged in millions of works, including works by foreign authors and publishers. Following hundreds of objections from around the world to the original settlement proposal put forward in October 2008, the parties negotiated an Amended Settlement Agreement (ASA) which they took to the court in November 2009. This was the settlement on which Judge Chin ruled today. In the ASA, foreign works were partially excluded except for those from Canada, the UK and Australia whose representatives joined the plaintiffs and were to be granted roles in the on-going administration of the scheme.
But like the original settlement, the ASA operated on the dubious principle that Google should be able to scan and commercialise any works covered under the agreement unless their rightsholders followed a specific process to “opt-out”. This approach was argued on the grounds that locating many rightsholders, particularly of so-called “orphan” works, was very costly and the benefits delivered by the ASA outweighed the right that copyright holders have to explicitly control the uses to which their works are put.
But Judge Chin rightly disagreed, seeing that it was probably this heavy-handed attempt to hijack a fundamental right that was at the centre of most problems with this case. “As counsel for Amazon argued: “[T]he law of the United States is a copyright owner may sit back, do nothing and enjoy his property rights untrammeled by others exploiting his works without permission.” … Under the ASA, however, if copyright owners sit back and do nothing, they lose their rights,” wrote Judge Chin in his judgement.
“In the end, I conclude that the ASA [Amended Settlement Agreement] is not fair, adequate and reasonable.”
But Chin left the door wide open for the parties bringing the action — including the US Authors Guild and Association of American Publishers — to come back with a revised agreement that would operate on an “opt in” basis.
“Many of the concerns would be ameliorated if the ASA were converted from an “opt-out” to an “opt-in” settlement. I urge the parties to consider revising the ASA accordingly,” he wrote.
A statement from the Association of American Publishers indicates they are listening. “While [it] is not the final agreement 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 American Author’s Guild made a similar statement.
Judge Chin’s full 48 page judgement is here.
James Grimmelmann’s excellent analysis of the opinion.