Google, Authors, Will Need To Rethink Digital Book Settlement
By Catherine Saez, Intellectual Property Watch on 23/03/2011 @ 4:59 pm
Google’s efforts to resolve questions of copyright infringement in its digital library project did not yield the hoped-for result as a district court judge yesterday rejected the agreement. But the judge left open the possibility that the parties could come back again with revisions.
Judge Denny Chin, circuit judge for the United States District Court of the Southern District of New York, found that the amended settlement agreement (ASA) between Google and The Authors Guild “would simply go too far.” But he acknowledged that “the digitisation of books and the creation of a universal digital library would benefit many,” according to the judge’s opinion, available here .
Under the agreement , Google would be authorised to digitise books or book sections but the rights granted to Google would be non-exclusive. Rights holders would retain the right to authorise others, including competitors of Google, to use their work in any way.
Google would also have to pay rights holders 63 percent of all revenues received from book uses. Revenues would be distributed according to an allocation plan in the agreement.
Google would have to obtain authorisation from rights holders to display in-print books but Google could display out-of-print books without the prior authorisation of the books’ rights holders, unless they ask Google to cease the display.
The judge said the motion for final approval was denied, but he did not rule out “renewal in the event the parties negotiate a revised settlement agreement.”
A class action lawsuit was brought against Google in 2005 by authors and publishers after the search engine had digitised millions of books at its own expense, many of which were still under copyright. A settlement agreement for the class action was worked out between Google and the authors and publishers, and was later amended in 2009.
Judge Chin had postponed a decision for over a year (IPW, IP Live, 20 February 2010 ).
The settlement was also objected to by two of Google’s major competitors: Amazon.com and Microsoft, on the grounds that the agreement would “violate existing copyright law.”
“The ASA would give Google a significant advantage over competition, rewarding it for engaging in wholesale copying of copyrighted works without permission,” the opinion says.
In his conclusion, Chin said that objectors, including the US government have said that “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.” He urged the parties “to consider revising the ASA accordingly.”
The “Google Book Settlement” website , maintained by the settlement administrator, says Google denies the claims of copyright infringement. No reaction to the latest court decision had been posted by press time, and a Google representative said no statement has yet been issued.
Separately, a question was raised today about the agreement’s treatment of orphan works – works still under copyright but for whom the rights holder cannot be found. In a blog today , John Bergmayer, staff attorney at Public Knowledge, offered positive remarks about the settlement but said it should be up to Congress, not a private-sector agreement, to fix the orphan works law. He also said more should be done to ensure that competitors could use orphan works and not give Google monopoly control of such works.
Article printed from Intellectual Property Watch: http://www.ip-watch.org
URL to article: http://www.ip-watch.org/2011/03/23/google-authors-will-need-to-rethink-digital-book-settlement/
URLs in this post:
 available here: http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115
 the agreement: http://www.googlebooksettlement.com/r/view_settlement_agreement
 IPW, IP Live, 20 February 2010: http://www.ip-watch.org/weblog/2010/02/20/decision-on-google-books-must-wait/
 “Google Book Settlement” website: http://www.googlebooksettlement.com/r/home
 a blog today: http://www.publicknowledge.org/blog/google-books-rejection-highlights-need-orphan
 : http://www.googlebooksettlement.com/r/view_notice