ARL Policy Notes
Judge Rejects Proposed Settlement In Google Books Dispute

Yesterday afternoon Judge Denny Chin rejected the proposed settlement of the Google Books lawsuit. (For background, see ARL’s GBS page and our past blog posts tagged #gbs). Paths forward are myriad - see our GBS March Madness flow chart for all the possibilities.

In a concise, 46-page opinion, Chin accepted nearly every objection that had been raised to the ambitious proposal, giving the most attention to the copyright issues. Judge Chin accordingly ruled that the settlement fell short of the legal requirement that a class action settlement be “fair, adequate, and reasonable.” He “urg[ed]” the parties to consider revising the agreement so that rightsholders would be required to “opt in” to be included in the program, rather than be included automatically unless they “opt out.” Chin scheduled a status conference with the parties for April 25, 2011.

Judge Chin agreed with the following objections, which had been raised by opponents of the settlement:

  • Inadequate representation of the class: some authors and publishers (e.g., academic ones) may have interests very different from the mostly large, commercial publishers and authors who negotiated the settlement.

  • The settlement exceeds the scope of the original conflict: the settlement is, as the U.S. Department of Justice put it, “ an attempt to use the class action mechanism to implement a forward-looking business arrangement that goes far beyond the dispute before the court.” Rather than addressing the original question of scanning and snippet display as part of a search engine, the proposed settlement created new models of commercial exploitation.

  • The settlement addresses issues, such as the treatment of “orphan works,” that are better left to Congress.

  • The settlement gives Google a de facto monopoly over unclaimed works.

  • The settlement “arguably” gives Google control over the search market.

  • The settlement is “in tension with” international law (esp. international copyright law).

Judge Chin rejected only two of the objections raised by settlement opponents: that the parties had not given adequate notice to the class-members, and privacy concerns (which he says could be alleviated without a significant impact on Google’s profit-making models).

The Judge also acknowledged the potential benefits of the settlement, including benefits to libraries and researchers. These were not enough to outweigh his concerns, however.

Jonathan Band, counsel to the Library Copyright Alliance, is currently working on an analysis of the decision. We will post that analysis here as soon as it is ready.

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