22 March 2011 by Published in: Research and Writing No comments yet

Those of you who are long-time readers of this blog know that I have been vehemently opposed to that portion of the Google Book Search project that involves the scanning of copyrighted works without the permission of the author, and then making those books available on-line in some fashion without paying royalties to the authors for the privilege. I came out against this program from the very start, and I enthusiastically supported the class action copyright infringement lawsuit filed against Google Book Search by the Authors Guild.

I then became horribly disillusioned when I learned that the Guild had entered into a tentative settlement with Google that would have perpetuated the copyright infringement AND which would have given Google a veritable monopoly over its massive copyright infringement scheme. Fortunately, Federal law requires that class action settlements have to be approved by the court before those settlements become effective. I’m pleased to report that the Court has roundly rejected this ill-advised settlement.

From CNet News today:

March 22, 2011 12:20 PM PDT
Court rejects Google Books settlement
by Caroline McCarthy

Adding another chapter to a long, drawn-out legal saga, a New York federal district court has rejected the controversial settlement in a class-action suit brought against Google Books by the Authors Guild, a publishing industry trade group.

“While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far,” a court document explains. “It would permit this class action–which was brought against defendant Google Inc. to challenge its scanning of books and display of ‘snippets’ for on-line searching–to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA (Amended Settle Agreement) would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.”

The settlement would grant Google the right to display excerpts of out-of-print books, even if they are not in the public domain or authorized by publishers to appear in Google Books. When the settlement was initially announced in mid-2009, opposition flooded in from lawyers on behalf of Microsoft, the Electronic Frontier Foundation, and a coalition called the Open Book Alliance who decried it as anticompetitive.

“Google and the plaintiff publishers secretly negotiated for 29 months to produce a horizontal price fixing combination, effected and reinforced by a digital book distribution monopoly,” a lawyer for the Open Book Alliance said at the time. “Their guile has cleared much of the field in digital book distribution, shielding Google from meaningful competition.”

The settlement was revised, primarily to deal with objections coming from the European Union, but concerns remained that it would give Google too much power over out-of-print book titles.

The most recent court docket, filed today, explains that Google has digitized over 12 million books since the original 2004 announcement of Google Books and its set of partnerships with several major universities to digitize their research libraries. In 2005, the class action suit was filed over the fact that many of the out-of-print books included in the mass scanning were still under copyright. Settlement negotiations began nearly five years ago.

Last year, the Authors Guild said that it chose to settle rather than head for a court battle because it didn’t want to repeat the well-publicized mistakes that the music industry made while policing digital piracy.

But concerns about the settlement have ranged from the aforementioned antitrust qualms, international law issues related to overseas copyrights, and privacy concerns regarding how much information Google could glean about readers.

The docket filed today, authored by Judge Denny Chin, asserts that “the ASA is not fair, adequate, and reasonable.”

“This is clearly disappointing, but we’ll review the Court’s decision and consider our options,” a statement from Google managing counsel Hilary Ware explained. “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. 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.”

John Sargent, CEO of Macmillan, issued a statement on behalf of the publishers that had joined the plaintiffs’ side of the lawsuit. “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,” he said. “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.”

To read the actual court order rejecting the settlement, click here.

Kudos to Judge Chin for protecting my rights–and the rights of other authors. I hope that the Guild now resumes its efforts to protect authors, not to give away the farm.

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