Todays News: Google Books Deal Not Dead, Only Resting, Authors' Lawyer Says

Sunday, March 27, 2011

Google Books Deal Not Dead, Only Resting, Authors' Lawyer Says

By Sam Gustin
March 24, 2011 |
2:42 pm |
Categories: Intellectual Property

U.S. Circuit Court Judge Denny Chin’s rejection of Google’s legal settlement with authors and publishers was not only a setback for the search giant’s plans to digitize and make available 10 million books, but also for the dream of a universal online library.

So where do we go from here? Is this deal dead?

“There’s nothing dead about the case or the settlement,” Michael J. Boni, lead attorney for the Authors Guild, told Wired.com in an interview. “We’re just considering what our next steps are. It’s gratifying that the publishers have said they’re still interested in working something out. That’s encouraging.”

In denying the motion to approve the Amended Settlement Agreement, or ASA, Judge Chin seemed sympathetic to a number of objections raised by critics of the class action settlement. And his wide-ranging opinion (.pdf) raised a number of key issues, including the big one: whether the settlement should be “opt-out” or “opt-in.”

Here’s the problem: Almost by definition, a class action lawsuit is opt-out. For example, let’s say some company negligently pollutes your river, or manufactures faulty brakes on your car. Notice is given to potential class members in the form of a newspaper posting or mailed notification, or even a website. Upon notification, the burden is on the presumed class member to notify counsel that they would not like to participate — i.e., opt out of the class.

About 6,800 authors have already opted out of the ASA, and Judge Chin explicitly wrote in his opinion that he was satisfied that “the class received adequate notice.?

‘You’ll probably see Elizabeth Taylor remembrance day before you see meaningful reform on orphan works in Congress.’

In this case, the class consists of all authors of copyright works, including an untold number of unknown authors responsible for so-called “orphan works,” which are works in copyright for which no author can be found, either because they have died or are otherwise unavailable. The corpus of works produced by these unknown authors is in the millions, and represents a vast body of knowledge currently sitting in limbo.

The classic example used to illustrate the “orphan works” problem is the documentary filmmaker who finds a piece of footage but can’t find the author. If she uses the footage, under current copyright law, she could be liable for onerous financial penalties if the author emerges after the fact.

In Google’s case, the company says it’s “fair use” to scan orphan books and use snippets of them in search results. But the settlement went further than that, making it possible for the company to show full pages online and sell digital copies of orphan works, holding the proceeds in escrow for a few years in case an author does show up.

But the court said that went too far, because the settlement was giving away the “property rights” of people without their consent, and the problem of orphan works was better left to legislators.

Judge Chin’s view isn’t novel: There’s a fairly broad consensus that the problem of orphan works needs to be addressed by Congress.

“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,” Judge Chin wrote.

What are the prospects of Congress taking up orphan works?

Don’t hold your breath.

“You’ll probably see an Elizabeth Taylor remembrance day before you see meaningful reform on orphan works in Congress,” one industry insider quipped.

In lieu of congressional action, what Google and the authors and publishers are trying to do with the settlement is achieve a solution unlocking “orphan works” for the public, essentially through a forward-looking contract between Google and all authors.

Not everyone thinks that’s a good idea.

“Our position is that we don’t want to grant monopoly control of orphan works to just one entity, Google,” Public Knowledge staff attorney John Bergmeyer told Wired.com. “At the same time, we recognize that some access to orphan works would be a good thing.”

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