'No Deal' for Google book settlement, but plenty of chances to play again

By Harriet Staff

When Google settled their book scanning case with the Authors Guild and the Association of American Publishers for $125 million a few years ago, all sides were pretty happy with the deal. Google would get to index the 15 million books it had already scanned in partnerships with university libraries, and authors and publishers would get some concessions along with getting their work more exposure. According to The New York Times, Authors Guild President Scott Turow wanted to extend that happiness to readers, too. "Readers want access to these unavailable works, and authors need every market they can get," he said. "There has to be a way to make this happen. It's a top priority for the Authors Guild."

Unfortunately for the parties involved in the settlement, they made up a very small percentage of those who the settlement would actually affect, causing U.S. Circuit Court Judge Denny Chin to strike down the settlement for being too broad. The opposition (and boy was there a lot of it) contended that the original plaintiffs had no business settling on everyone's behalf in the first place.

U.S. Circuit Judge Denny Chin in Manhattan said the creation of a universal library would "simply go too far," and he was troubled by the differences between Google's views and those of everyone affected by the settlement. Still, he left the door open for an eventual deal, noting that many objectors would drop their complaints if Mountain View, Calif.-based Google Inc. set it up so book owners would choose to join the library rather than being required to quit it.

This doesn't mean the end of Google's book scanning project, but it doesn't mean that a resolution will be found anytime soon, either. The groups left out of the original talks and opposed to the settlement include "Google rivals, consumer watchdogs, academic experts, literary agents and even foreign governments," not to mention Congress, who is responsible for constructing copyright law in the first place. That's a lot more layers of interest to appease.

Department of Justice spokeswoman Gina Talamona said in a statement that the government was pleased with the ruling. The settlement, she said, "exceeded the scope of the underlying lawsuit on which it was based and created concerns regarding antitrust, class certification and copyright issues."

Over at TechDirt, Mike Masnick notes that early sympathies favored Google and their argument for fair use in indexing the titles. The settlement itself was what turned everyone else against them, and the backlash didn't stop at Google, negatively affecting perceptions Authors Guild and Association of American Publishers just as much when they agreed to what looked suspiciously "like a business deal, rather than a settlement."

Google started scanning various books to create what was effectively a giant online card catalog, making it much easier to research and find useful books. Contrary to what some have claimed, it did not make it easy to read entire books online. In fact, publishers began realizing that Google's book search helped sales by helping people find their books, and directing them to where those books could be bought. But, still, the rather backwards looking Authors Guild couldn't resist and sued. It seemed like Google had an incredibly strong fair use argument, especially if you take into account the original intent and purpose of copyright law, being a statute to increase the spread of knowledge.

In the end, this latest ruling has little to say about the fair use component, which Masnick finds troubling. Considering this case probably has at least a few more years and a few more rounds of litigation to go, perhaps Masnick will get to see it reenter the debate.

TechDirt also has the full text of Judge Chin's ruling. Index that, Google!