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Google Books settlement rejected, but likely not a lost cause

Renegotiation of the Google Books agreement is a possibility, and involved parties seem amenable.

Google BooksJudge Denny Chin shut down — or perhaps “set in limbo” is a better phrase — Google’s digital bookstore and library plans when he rejected the Google Books Amendment Settlement Agreement Tuesday.

James Grimmelmann, associate professor at New York Law School, broke down the seven areas of discussion in Chin’s opinion: notice, representation, future releases, copyright, antitrust, privacy, and international. Of these, Grimmelmann thinks the future releases element was the key obstacle:

Throughout the opinion, almost every time Judge Chin raises an objection, that objection has bite only as applied to the future-conduct portions of the settlement.

Grimmelmann cites a section of Chin’s opinion on the future release issue and offers analysis:

(Judge Chin) 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.

(Grimmelmann) This move is what sinks the settlement. Chin has set up a dichotomy: Google’s past conduct in scanning and searching was the subject of the lawsuit, but it is Google’s future conduct in selling whole books that would be authorized by the settlement. The case “was not about” the same things the settlement is.

In the area of copyright, Chin indicated Congress should be the judge. Grimmelmann cited from Chin’s decision:

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. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.”

I wonder if this area will be held up — or tied to — the Golan v. Holder copyright case currently being heard by the Supreme Court.

Grimmelmann’s in-depth analysis is smart and accessible — well worth the read.

One victim from the decision is the US library system. As Josh Hadro points out in a post for Library Journal:

If the settlement had been approved, it would have created what some had taken to calling “The Last Library,” the de facto corpus of materials made available to most Americans. For now, with the rejection of the settlement agreement, efforts like the HathiTrust and the still-nascent Digital Public Library of America will in the meantime be libraries’ best chance for broad access to a wide variety of books and other digitized materials.

As Grimmelmann noted, the settlement ended “not with a bookstore, but a whimper.” The whimpering likely won’t last as long as the 13-month settlement case, however. The Author’s Guild (here) and Association of American Publishers (here) indicate a willingness to renegotiate the settlement based on Chin’s opinion. Google expressed disappointment, but stated:

… we’ll review the Court’s decision and consider our options … 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.

A status-update soiree for all parties has been set for April 25.

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