Authors Guild vs. Google

And now to today’s post.

I’m still processing Judge Denny Chin’s ruling, but having finished a first read-through of the forty-eight pages, I conclude he’s right that the proposed settlement is not “fair, adequate, and reasonable, and not a product of collusion.” I don’t plan to rehash the entire case. For background see “Google Encore.” Since I posted that entry, the parties have been negotiating back and forth and finally submitted an amended settlement proposal to which the National Writers Union and a number of writers took strong exception.

The gist of the order is that allowing Google to digitize books would violate copyright law and the rights of the holders. The judge took particular notice of the large number of class members, authors and publishers, that objected to the proposed settlement. He also noted that there was a conflict between the named plaintiffs and other members of the class, which makes it difficult if not impossible for the named folks to represent the class adequately.

Chin lays at the door of Congress the task of figuring out how to “exploit” unclaimed books. While I’m sure he’s right on the law, as a policy matter, Google could digitize the entire world, not just books, in the time it will take Congress to make law on this issue. It took from 1918 to 1978 to enact a complete revision of the law. Rights have been extended in the interim. The next major revision took only twenty years. Since technology changes in a nano-second I don’t have any great hope that Congress will be able to play its intended role.

Even though it’s buried on p. 26 of 48 in the typewritten decision, I think Judge Chin’s major objection to the settlement can be found here:

… the ASA would grant Google the right to sell full access to copyrighted works that it would otherwise have no right to exploit. [footnote omitted] The ASA would grant Google control over the digital commercialization of millions of books, … And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions.

Sounds like bad faith to me. In connection with this issue elsewhere in the decision, Chin quotes the U.S. Supreme Court in its support of “consistent deference when major technological innovations alter the market for copyrighted materials.” If only Congress could move with times.

And the real bombshell, he’s not even sure anyone could approve an agreement that denigrates the rights of people who have not given express consent.

Others have pointed the judge’s not  so subtle statement that if the agreement shifted “opt out” for “opt in” so that authors and publishers have to choose to allow Google to scan, then the settlement might go through. I’m not so sure I agree, given the other defects he’s noted.

If you have insomnia, here’s some good bedtime reading.


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