Google, Authors, Will Need To Rethink Digital Book Settlement

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.

john e miller says

26/03/2011 at 8:19 am

The Google Amended Settlement Ruling as above may establish some interesting precedent regarding to what extent copyright law in one country may cross-territorially affect copyrighted materials in another.

It was the opinion of the Author/Publisher Plaintiffs in the Original Settlement Class Notice (May 8, 2009) that the ruling of a US court could be binding upon books published in any country that has a Bi- or Multi-lateral Copyright Agreement with the USA even if such book was never published or even sold in the USA. Such a book might however be available to the Google digitizing team if housed at a ‘major research library’ with whom Google had structured a digital copying agreement.

(Original Notice) “If you are a rightsholder who is a national of, or is otherwise located in, a country other than the United States, you are likely to own a U.S. copyright interest if (a) your Book was published in the United States, or b) your Book was not published in the United States, but your country has copyright relations with the United States because it is a member of the Berne Convention, or (c) your country had copyright relations with the United States at the time of the Book’s publication.”

(Original Notice) “You should assume that you own a U.S. copyright interest in your Book, unless you are certain that your Book was published in, and that you reside and are located in, one of the few countries that have not had or do not now have copyright relations with the United States.”

(Amended Notice) “The Amended Settlement, however, has narrowed the definition of Books from the Original Settlement. As a consequence, many class members under the Original Settlement are no longer class members under the Amended Settlement.”

(Amended Notice) “As a result of these amendments, if the only United States copyright interests you own are in works that were not either (a) published and registered with the United States Copyright Office by January 5, 2009 or (b) published in Canada, the UK or Australia by that date, you are not a member of the Amended Settlement Class, even if you were a member of the original Settlement Class.”

Judge Denny Chin’s ruling included in Section 7.:

“In any event, I need not decide whether the ASA would violate international law. In light of all the circumstances, it is significant that foreign authors, publishers, and, indeed, nations would raise the issue.”

Even though the ASA greatly reduced the international class, whether the original settlement interpretation would stand-up to any challenge really is immaterial for my purposes; it is obvious that the Publisher Plaintiffs including some of the largest US publishers and the American Association of Publishers (AAP) itself believed such interpretation was valid as proffered and as described in the original Class Notice.

My personal concern is not directly with the Google decision but how it might affect the extent that one country’s copyright exceptions might impact another. Or, more specifically, how an exception in one country’s copyright exception for Braille reproduction might be used to make Braille renditions that are then exportable to another country … most likely to a ‘developing country’ with an under-served reading disabled population.

That the Publisher interests including the AAP signed on to the Original Class Notice, given the recent opinion of the US Copyright Office on US Copyright Law 602a exportation exemptions for ‘Authorized Entities’, to me is mind boggling.

Note: Class notices available at http://www.googlebooksettlement.com/r/view_notice

Comments

john e miller says

23/03/2011 at 11:40 pm

Judge Chin also offered interesting observations at 7. ‘International Law Concerns’ as regards how works published in foreign countries having bi- or multi-lateral Copyright Agreements with the USA, or, foreign published works that were directly registered with the US Copyright Office, might be treated under US Copyright Law.

john e miller says

26/03/2011 at 8:19 am

The Google Amended Settlement Ruling as above may establish some interesting precedent regarding to what extent copyright law in one country may cross-territorially affect copyrighted materials in another.

It was the opinion of the Author/Publisher Plaintiffs in the Original Settlement Class Notice (May 8, 2009) that the ruling of a US court could be binding upon books published in any country that has a Bi- or Multi-lateral Copyright Agreement with the USA even if such book was never published or even sold in the USA. Such a book might however be available to the Google digitizing team if housed at a ‘major research library’ with whom Google had structured a digital copying agreement.

(Original Notice) “If you are a rightsholder who is a national of, or is otherwise located in, a country other than the United States, you are likely to own a U.S. copyright interest if (a) your Book was published in the United States, or b) your Book was not published in the United States, but your country has copyright relations with the United States because it is a member of the Berne Convention, or (c) your country had copyright relations with the United States at the time of the Book’s publication.”

(Original Notice) “You should assume that you own a U.S. copyright interest in your Book, unless you are certain that your Book was published in, and that you reside and are located in, one of the few countries that have not had or do not now have copyright relations with the United States.”

(Amended Notice) “The Amended Settlement, however, has narrowed the definition of Books from the Original Settlement. As a consequence, many class members under the Original Settlement are no longer class members under the Amended Settlement.”

(Amended Notice) “As a result of these amendments, if the only United States copyright interests you own are in works that were not either (a) published and registered with the United States Copyright Office by January 5, 2009 or (b) published in Canada, the UK or Australia by that date, you are not a member of the Amended Settlement Class, even if you were a member of the original Settlement Class.”

Judge Denny Chin’s ruling included in Section 7.:

“In any event, I need not decide whether the ASA would violate international law. In light of all the circumstances, it is significant that foreign authors, publishers, and, indeed, nations would raise the issue.”

Even though the ASA greatly reduced the international class, whether the original settlement interpretation would stand-up to any challenge really is immaterial for my purposes; it is obvious that the Publisher Plaintiffs including some of the largest US publishers and the American Association of Publishers (AAP) itself believed such interpretation was valid as proffered and as described in the original Class Notice.

My personal concern is not directly with the Google decision but how it might affect the extent that one country’s copyright exceptions might impact another. Or, more specifically, how an exception in one country’s copyright exception for Braille reproduction might be used to make Braille renditions that are then exportable to another country … most likely to a ‘developing country’ with an under-served reading disabled population.

That the Publisher interests including the AAP signed on to the Original Class Notice, given the recent opinion of the US Copyright Office on US Copyright Law 602a exportation exemptions for ‘Authorized Entities’, to me is mind boggling.

Note: Class notices available at http://www.googlebooksettlement.com/r/view_notice

Google, Authors, Will Need To Rethink Digital Book Settlement

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