Vviewpoints
DOI: 10.1145/2018396.2018408
Legally Speaking
Why the Google Book
Settlement failed—
and What Comes next?
On oCtoBer 28, 2008, Go ogl e, the A ut ho rs Guild, and the Associa- tion of American Pub- lishers (AAP) announced
a settlement of lawsuits charging
Google with copyright infringement
for scanning in-copyright books from
the collections of major research libraries. While litigants can ordinarily settle lawsuits without judicial
oversight, different rules apply in
class action lawsuits. Because class
action settlements affect the rights
of many people who were not directly
involved in the lawsuit or settlement
negotiations, judges must determine
whether the proposed settlement is
“fair, reasonable, and adequate” to
the class on whose behalf the lawsuit
was being settled.
PhotograPh by menna / shutterstoCK. Com
Just over 13 months after the fairness hearing on the proposed Google
Book Search (GBS) settlement, Judge
Denny Chin finally ruled that this
agreement did not satisfy the fairness
standard. The litigants did not appeal rejection of the settlement. The
default next step is for the case to go
back into litigation on the fair use or
infringement issue.
In this column, I explain why Judge
Chin disapproved the GBS settlement,
speculate that the fair use issue may
not be decided by the courts, and discuss the possibility of a new settlement and of legislation as alternatives.
“a Bridge too far”
The single most important factor in
Judge Chin’s ruling against the GBS
settlement lay in his agreement with
the U.S. Department of Justice (DOJ)
that it was “a bridge too far.”
The actual issue in litigation was
whether scanning books to index their
contents and provide snippets was
copyright infringement or fair use. Yet,
the settlement proposed an extremely
complex forward-looking commercial
regime under which Google could com-
mercialize all out-of-print books (un-
less rights holders showed up to say no)
and display up to 20% of contents of
these books in response to search que-
ries, as long as it shared 63% of the rev-
enues with rights holders who registered
with a new collecting society to be known
as the Book Rights Registry (BRR).
