With Google Books Settlement Rejected, What Next?

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With Google Books Settlement Rejected, What Next?

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New York, March 23, 2011—The rejection of a settlement between Google and groups representing authors and publishers over the company’s plans to digitize millions of books leaves both sides without a clear direction for where to turn next, Columbia Law School Professor Jane Ginsburg said.

In turning down the settlement, federal Judge Denny Chin, now serving on the Court of Appeals for the 2^nd Circuit, ruled Tuesday the deal ignored basic copyright protections, could have granted Google a “de facto monopoly” for digitizing books, and would allow the company to profit from works by authors who did not give Google permission to put their work online.

“The whole concept of copyright is that it’s the exclusive right of the author to determine when, where or how she wants to exploit her work,” said Ginsburg, the Morton L. Janklow Professor of Literary and Artistic Property Law and an internationally recognized expert on copyright.

One of the most contentious aspects of the settlement was that it allowed Google to digitize a book unless an author or rights owner specifically opted out. This would have allowed Google to exploit so-called orphan works, books whose author cannot be located or whose rights-holder is unknown, as well as “unclaimed” works whose authors might be found, but had not come forward to claim their books. The Justice Department, which had opposed the settlement, had advocated an opt-in policy.

“Google’s way of dong business in all of its Internet activities is built on opt-out,” Ginsburg said. “The real value of the settlement both to Google and to authors, publishers and the public at large was that it would have covered the exploitation of works whose copyright owners are difficult to find.”

Because of that, Ginsburg said crafting a new deal, in light of Chin’s decision, could prove difficult, even though a consortium of publishers said they would be willing to entertain a narrower settlement. At the same time, Ginsburg noted that Google could also do more to locate authors and secure agreements to digitize their works.

“On a practical factual level, the class of authors who at the time of the settlement had not claimed their work, is probably much larger than the class of genuinely orphaned works,” Ginsburg said. “There are plenty of extremely findable but inert authors who are dimly aware that this settlement is going on. Anytime you put the burden on someone to do something there’s a significant inertia aspect. The premise that we can’t find the author may be overstated.”

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