Court Rejects Google Books Settlement — Now What?

Ryan Radia — Tue, 22 Mar 2011 22:16:24 +0000

Today, the U.S. District Court for the Southern District of New York rejected a proposed class action settlement agreement between Google, the Authors Guild, and a coalition of publishers. Had it been approved, the settlement would have enabled Google to scan and sell millions of books, including out of print books, without getting explicit permission from the copyright owner. (Back in 2009, I submitted an amicus brief to the court regarding the privacy implications of the settlement agreement, although I didn’t take a position on its overall fairness.)

While the court recognized in its ruling (PDF) that the proposed settlement would “benefit many” by creating a “universal digital library,” it ultimately concluded that the settlement was not “fair, adequate, and reasonable.” The court further concluded that addressing the troubling absence of a market in orphan works is a “matter for Congress,” rather than the courts.

Both chambers of Congress are currently working hard to tackle patent reform and rogue websites. Whatever one thinks about the Google Books settlement, Judge Chin’s ruling today should serve as a wake-up call that orphan works legislation should also be a top priority for lawmakers.

Today, millions of expressive works cannot be enjoyed by the general public because their copyright owners cannot be found, as we’ve frequently pointed out on these pages (1, 2, 3, 4). This amounts to a massive black hole in copyright, severely undermining the public interest. Unfortunately, past efforts in Congress to meaningfully address this dilemma have failed.

In 2006, the U.S. Copyright Office recommended that Congress amend the Copyright Act by adding an exception for the use and reproduction of orphan works contingent on a “reasonably diligent search” for the copyright owner. The proposal also would have required that users of orphan works pay “reasonable compensation” to copyright owners if they emerge.

A similar solution to the orphan works dilemma was put forward by Jerry Brito and Bridget Dooling. They suggested in a 2006 law review article that Congress establish a new affirmative defense in copyright law that would permit a work to be reproduced without authorization if no rightsholder can be found following a reasonable, good-faith search.

Final Hearing on Google Books Settlement on February 18—But Not On Web?

Berin Szoka — Sat, 06 Feb 2010 21:48:40 +0000

The Federal district court handling the Authors Guild’s suit against Google over Google Books has scheduled a hearing on for February 18, 2010 in New York City (after several postponements). The parties, their supporters and the Department of Justice will all get to speak. Twenty-six outside groups will each get five minutes to speak about the deal—21 against and 5 in favor. (If the numbers seem off-balance, note that France is on the “con” side, and if the statist-stasist-centralist-protectionist French are against something tech-related, how bad an idea could it really be?)

Although the settlement is highly arcane, how this issue is resolved will probably do as much, for better or worse, to shape our digital future in the years to come as any tech policy issue currently under discussion. (I’d say only net neutrality, privacy regulation and media socialization would fall into the same tier of such fork-in-the-road decision-points.)

So of course this profoundly important public hearing is going to be livecasted, right? Unfortunately, I don’t think so. The court order mentions that video of the proceeding will be provided in a second courtroom for overflow seating, but says nothing beyond that. Given the importance this hearing, that’s a bit like saying that the State of the Union Address is going to be available on video in the Senate Chamber as well as the House Chamber—so there will be plenty of seating for the literally hundreds (in this case, maybe dozens) of people in the interested public who are lucky enough to live nearby and drop in—and manage to get in. Maybe I’m not giving the court the benefit of the doubt here, but… why should I? The judiciary can’t even handle making their PDF documents easily accessible! So it’s possible that they’ll surprise us, but I doubt it. And if courtroom practice up in New York is anything what I’ve dealt with, I suspect the court security will prevent journalists from bringing cameras, even on their cell phones, into the courtroom. So we probably won’t even get grainy video re-captures!

If they can put the video in the courtroom next door, surely they can put it up on the web, too. If courts are going to be making such critical technology policy decisions, their final hearings on the matters ought to be accessible to everyone. We would expect nothing less from our other branches of government, so why can’t we hold the judiciary to the same standard? Seriously, guys, have you ever heard of UStream?

google books settlement – Technology Liberation Front

Court Rejects Google Books Settlement — Now What?

Final Hearing on Google Books Settlement on February 18—But Not On Web?