Amended Google Settlement Agreement Rejected by Court

March 24, 2011 – Blog Post

Suggesting an 'opt-in' settlement instead of an 'opt-out' settlement approach, Judge Chin of the Southern District of New York, rejected the Amended Google Settlement Agreement.

Judge Chin stated that while the benefits of the settlement, including the digitization of books for research and preservation purposes and the creation of a global digital library, would benefit society, changes of this magnitude in basic and well-established copyright jurisprudence should be undertaken through legislation, not litigation.

Concerns about the proposed agreement included that (1) the proposed settlement would give Google a significant marketing advantage over its competitors, with Google enjoying monopoly access over its collection of all works (gained through its infringement); (2) the settlement would bind claimants whose claims were not presented in this case; (3) in enacting the 1976 Copyright Act, Congress did not intend to impose a duty on authors to “come forward to protect their rights when Google copied their works without first seeking their permission,” (Slip Op. at p. 35), and (4) the settlement would violate U.S. treaty obligations, as many of the books being scanned were written by foreign authors. A status conference is scheduled for April 25, 2011. Decision: http://www.nysd.uscourts.gov/cases/show.php?db=special&id=115.

Background

The Copyright Act gives authors the exclusive right to make and distribute copies of their literary and artistic works, including books, poems, scientific and technical articles, letters, and short stories. In other words, authors must give their permission for the reproduction and distribution of their works.

Since October of 2004, Google Inc. has electronically scanned and archived more than twelve million books and other materials from several major research libraries. It has also “delivered digital copies [of these materials] to the participating libraries, created an online electronic database of books, and made text available for online searching.” Slip Op. at p. 2. This copying and distribution was done without obtaining the permission of the copyright owners. In defense of its procedures, Google stressed that if an individual author objected to his or her inclusion in the database, (s)he could “opt-out,” and Google would remove that author’s works. In response, several individual authors, an authors’ organization, and several publishers brought a class action lawsuit against Google, alleging massive copyright infringement and seeking an injunction to shut down the Google Library Project. On November 13, 2009, after heated debate that prompted some changes in Google’s business model, the parties signed a settlement agreement and submitted it to the judge for his approval. On March 22, 2011, after a fairness hearing and after a review of numerous briefs by outside parties and by authors who strongly oppose the Project, the judge ruled that the agreement is unfair to many authors and publishers, and he refused to approve it.