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Stunning news on Google Settlement

28 March 2011

Some weeks there's just too much news for us to cover in a short column and this is one of those weeks, so for now the latest moves in the ongoing Google Settlement saga (see News Review 27 April 2009 and 16 November 2009) have to take precedence. In a stunning final judgement, Judge Denny Chin has this week rejected the Google Book Settlement, some 13 months after its final fairness hearing, saying: "In the end, I conclude that the [Settlement Agreement] is not fair, adequate, and reasonable." Chin set a date of April 25th for a status conference, and suggested his concerns with the agreement could be overcome with one simple change. "As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted from an opt-out settlement to an opt-in settlement. I urge the parties to consider revising the ASA accordingly."

It looks as if the number of objectors (6,800) has influenced Judge Chin. In his decision, he recognised the value of digitisation, but sided firmly with the settlement's objectors and critics who felt that the deal gave Google an unfair advantage. "While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far... Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case."

Judge Chin said: "I urge the parties to consider revising the ASA accordingly." Of course that would literally change everything, not only removing the Settlement's attempt to provide a legal and business-driven solution to identifying orphan works owners and making orphan works available, but also torpedoing the Settlement's scheme to drive revenue from an aggregation of those works.

Many parties across the world will be pleased that Google have not managed to get this through. Authors' organisations in particular have been vocal in their opposition to Google's vacuuming up of rights.

However the US Authors' Guild President Scott Turow said: "Regardless of the outcome of our discussions with publishers and Google, opening up far greater access to out-of-print books through new technologies that create new markets is an idea whose time has come. Readers want access to these unavailable works, and authors need every market they can get. There has to be a way to make this happen. It's a top priority for the Authors Guild."

Martyn Daniels, who blogs for the Booksellers Association in the UK, and was one of the original and revised agreement's more vocal critics, said: "What should happen now is that all sides should get together and come up with a better deal. It is a big mess, but also a huge opportunity for the global publishing sector to get its house in order." Daniels said he would like to see the agreement made on an "opt-in" basis, but also agreement over orphan works to be non-exclusive to Google, and for the industry to run and operate its own Rights Registry."

But Evan Schnittman, global managing director of sales and marketing at Bloomsbury Publishing, said counting this as a victory was a "very short-sighted view". He said: "The Settlement was a means for control over the works - which has now disappeared. There is a long and arduous path ahead and no one has a map. What many saw as fatal flaws in the proposed Settlement, others saw as a means to stop a far, far worse outcome."

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