I have now had the chance to go through Judge Chin’s opinion rejecting the proposed Google Books settlement for the third time. I am struck by how much — and how little — it says. Its holding is clear and direct: the settlement “would release Google (and others for certain future acts … an arrangement that exceeds what the court may permit under Rule 23.” (21) The legal analysis supporting this conclusion takes perhaps five pages out of forty-eight. The rest of the opinion is … well, it’s complicated.

The opinion discusses seven kinds of objections to the settlement:

1. Notice
2. Representation
3. Future releases
4. Copyright
5. Antitrust
6. Privacy
7. International

According to my reading, “Future releases” is the only one of the seven that Chin holds to be a sufficient ground for rejecting the settlement on its own. He dismisses notice and privacy relatively quickly, writing, “I am satisfied that the class received adequate notice” (19), and while the “privacy concerns are real,” they are not “a basis in themselves to reject the proposed settlement.” (39) The other four all receive various expressions of concern, but even as Chin repeatedly pronounces himself “troubled,” he avoids making direct statements that they require rejection. Instead, there is only a “substantial question” about the adequacy of representation (20), he “need not decide” the most specific copyright question (32), he “need not decide whether the ASA would violate international law,” (43) and I can’t find anything in the antitrust section that constitutes a conclusion of law. (The only cited case is a “Cf”!)

What is going on here? The future releases issues are sufficient by themselves to reject the settlement; indeed, having concluded that the settlement “exceeds what the court may permit under Rule 23” (21, emphasis added), Judge Chin left himself no choice but to reject it. The rest of the opinion provides reasons to support that result — but the opinion is cagey as to which of these are additional legal rationales, and which are just policy arguments.

I can imagine two reasons for this caginess. The first is that Judge Chin deliberately wrote a minimalist opinion. If hard cases make bad law, then perhaps big cases make strange law. It may be Judge Chin resolved this one on a relatively narrow basis so he could avoid the need to make detailed rulings on dozens of different issues at once in the context of a highly unusual case. The other possibility is that the ultimate legal question Judge Chin faces — is the settlement “fair, adequate, and reasonable?” (14) — is a flexible all-things-considered standard. His point, then, is not that there are a dozen reasons why the settlement must be rejected, but rather that there are a dozen important considerations all tipping against the settlement, which, taken together add up to an easy call: reject.

The other thing that struck me immediately about the opinion was the remarkable diversity of objectors whose views it cites. It quotes from dozens of different filings, including one notable passage on pages 33 and 34 that pull together concerns from four authors and a pair of literary agents about the settlement’s opt-out structure. This is a quietly effective piece of judicial rhetoric: it emphasizes the range of objectors as well as the range of objections. This goes along with its emphasis on the “great in number” objections and the “extremely high number of” opt-outs: persuading the reader that class members disapprove of the settlement.

While I’m talking about citations, let me also congratulate Emily Anne Proskine and Andrea Glorioso, both of whose student notes were cited in the opinion. Even on such a big and complicated case, good student work can make a valuable contribution, and theirs did. Three of the pieces in our D is for Digitize symposium issue were cited, as was — permit me a moment’s pride — our supplemental letter the court.

That’s the high-level view. Let’s look into the details.

Future Releases

I’ve long believed that the Rule 23 aspects of the settlement are absolutely central to what make it both powerful and dangerous. Judge Chin agrees. He starts by making a crucial distinction:

The ASA can be divided into two distinct parts. The first is a settlement of past conduct and would release Google from liability for past copyright infringement. The second would transfer to Google certain rights in exchange for future and ongoing arrangements, including the sharing of future proceeds, and it would release Google (and others) from liability for certain future acts. (21)

The emphasis is Judge Chin’s. This passage is the key to the settlement, and the key to the opinion:

I conclude that this second part of the ASA contemplates an arrangement that exceeds what the Court may permit under Rule 23. (21)

By way of contrast, he cites — seemingly with approval — the United States’s position that the past-conduct half of the settlement could appropriately be settled. Throughout the opinion, almost every time Judge Chin raises an objection, that objection has bite only as applied to the future-conduct portions of the settlement. Thus, the question this part of the opinion resolves is how far a court can go in approving a settlement in which a class gives up claims against a defendant for things it hasn’t done yet.

The legal analysis here turns on the relationship of those future-conduct claims to the underlying lawsuit. Here, the parties had been arguing that the scope of the underlying lawsuit should be determined by looking at their complaints against Google, which they construed broadly to involve Google’s “digital copies.” (25) But Judge Chin rejects that move, writing instead:

This case was brought to challenge Google’s use of “snippets,” as plaintiffs alleged that Google’s scanning of books and display of snippets for online searching constituted copyright infringement. … There was no allegation that Google was making full books available online, and the case was not about full access to copyrighted works. The case was about the use of an indexing and searching tool, not the sale of complete copyrighted works. (24-25)

A page later, he adds:

Google did not scan the books to make them available for purchase, and, indeed, Google would have no colorable defense to a claim of infringement based on the unauthorized copying and selling or other exploitation of entire copyrighted books. Yet, the ASA would grant Google the right to sell full access to copyrighted works that it otherwise would have no right to exploit. (26)

This move is what sinks the settlement. Chin has set up a dichotomy: Google’s past conduct in scanning and searching was the subject of the lawsuit, but it is Google’s future conduct in selling whole books that would authorized by the settlement. The case “was not about” the same things the settlement is. Thus, under the two governing precedents — the “identical factual predicate” test of Wal-Mart Stores and the “general scope of the case made by the pleadings” test of Firefighters — the settlement goes beyond the underlying lawsuit, and is therefore impermissible.

This strikes me as broadly correct, but the legal analysis is surprisingly thin. If it had been me, I might have said that Firefighters is simply not on point because it concerned promises by the defendant, not releases by the class. I would have added that the reason the Wal-Mart “identical factual predicate” test makes sense here is that it is grounded in preclusion law: win or lose, a lawsuit resolves all of the plaintiffs’ claims against the defendant that are based in the same facts.

The “same facts” line helpful distinguishes Google’s actual past scanning from its hypothetical future book sales. Since Google hasn’t sold complete books — and wouldn’t without the settlement — the class members couldn’t sue Google on claims connected with whole-book sales. And thus, since those claims couldn’t properly be before the court in litigation, they’re not properly before it in settlement. Q.E.D.

(I’ve been working out this theory for a while now. It also makes sense of ripeness, personal jurisdiction, defendant class actions. If this is how the Google Books settlement ends — not with a bookstore, but a whimper — the theory may need to end up back on the shelf.)

Also in the “future releases” section of the opinion, Judge Chin discusses Congress’s institutional role and representation of class members. (This last one is puzzling, as there is also a separate “adequate representation” section. I’ll discuss it there.) He emphasizes, in several places throughout the settlement, that this is a job for Congress. Interestingly he does so not on Rule 23 civil-procedure institutional-choice arguments, but rather on substantive copyright grounds:

The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003); accord Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (“[I]t is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product.”). (23)

This stops short of being a straight legal conclusion that the court cannot pass on such matters. It reads more like a prudential argument: the court shouldn’t.

Notice

Now that we’ve seen the five pages of future-conduct arguments that doomed the settlement, let’s turn back to the other forty-plus pages. I’ll take up the issues in the order Judge Chin does. He is strikingly unconcerned with notice — indeed, this is the one part of the opinion that I count as a clear win for Google and the plaintiffs:

The objections to the adequacy of the class notice are rejected. I am satisfied that the class received adequate notice. More than 1.26 million individual notices in thirty-six languages were sent directly to copyright owners, potential class members, and publisher and author associations worldwide. Plaintiffs also established a website to provide information about the case, the original proposed settlement, and the ASA. Of course, the case has received enormous publicity, and it is hard to imagine that many class members were unaware of the lawsuit. (19)

This last phrase reads as though it were directed to Scott Gant, who pushed the notice issue vigorously at the fairness hearing, only to be asked, “You’re here, though?

Representation

Judge Chin has some nice words for class counsel, whom he calls “qualified, experienced, and able to conduct the litigation.” (20) That’s just the setup, though, because he then states that there is a “substantial question” (20) as to whether the named plaintiffs adequately represented their peers, and that the differences of opinion among class members are “troubling.” (21) (Note that the “substantial question” is asked but not answered.) He identifies three groups who may not have been adequately represented:

First, academic authors care about access to knowledge; commercial authors and publishers (like the named plaintiffs) care about revenue. This point is a coup for Pam Samuelson’s academic-author coalition, for whom it was a central argument.

Second, foreign rightsholders have interests “that may be at odds” (29) with the class representatives for reasons that are alluded to but never quite made explicit. I’ll discuss this below, but while the opinion tallies their objections to the settlement, it never quite identifies how their interests qua interests diverge.

Third, “rightsholders who do not come forward to register” (29) (e.g., orphan copyright owners) don’t have interests that align with the parties to the lawsuit. Instead, the “parties have little incentive to identify and locate the owners of unclaimed works, as fewer opt-outs will mean more unclaimed works for Google to exploit.” (29) Although the direct financial incentives that encouraged claiming rightsholders not to look for unclaiming ones are gone, I think this point is correct. A rightsholder who doesn’t step forward can’t opt out, which means more power for the Registry, more revenue for Google, and a venture more likely to achieve critical mass for the other rightsholders.

On this last point, the parties had argued that orphan owners here shouldn’t be thought of any differently than any members of any other class who don’t step forward — every class action, almost by definition, will have absent class members. I’ve been arguing against this view for two years now. I think that the fact that we know with substantial confidence that many copyright owners cannot and will not be found makes this class action particularly troubling, and that the fact that their future claims are being compromised compounds the trouble. In a subtle and important passage, Judge Chin comes down on the “orphans are special” side of the debate:

While it is true that in virtually every class action many class members are never heard from, the difference is that in other class actions class members are merely releasing “claims” for damages for purported past aggrievements. In contrast, here class members would be giving up certain property rights in their creative works, and they would be deemed — by their silence — to have granted to Google a license to future use of their copyrighted works. (30)

If you ask me for proof that Judge Chin gets it, I’ll cite this passage. Future-conduct releases by individuals are okay, because well-informed individuals can make choices for themselves about the future. Past-conduct releases by a class are okay, because the most they have to lose is possible compensation for harms that have already happened to them. But the combination of future-conduct releases and a class with known absent members is explosively dangerous, because so much more is on the table for them: they could lose important property rights, or have fresh harms inflicted on them.

Copyright

This section is an interesting mix of policy and statutory arguments. It starts with a reprise of the “copyright is a job for Congress” song from Act I. Then it develops an argument that the settlement is an “expropriation” of class members’ copyrights in violation of Section 201(e) of the Copyright Act. I tend towards the parties’ position here: the settlement is a license, not a transfer of ownership, so this section doesn’t apply at all. Judge Chin, though, finds it “at a minimum a fair question” (31), although he ultimately concludes that he “need not decide the precise question.” (32)

I found this passage notable also because it illustrates David Nimmer’s advocacy at work; you can see why Amazon is paying him what I assume are the big bucks. I scoffed at the § 201(e) argument when he made it in his briefing for Amazon, but here it is in the opinion. What authority does the opinion cite to bolster its analysis? “3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 10.04 (Rev. Ed. 2010).” (32) Self-link FTW!

This leads into perhaps the most impassioned part of what is generally a fairly staid and restrained opinion: a discussion of whether a settlement could ever impose an opt-out system of assumed consent on copyright owners. It quotes liberally from Nimmer’s oral argument from individual authors who opposed the settlement, and from an “eloquent[]” (35) letter from two literary agents. All of them object to the idea that the burden is on them to step forward if they wish to object, instead of the burden being on Google to secure their permission. Judge Chin’s summary paragraph is worth reading closely:

While the named plaintiffs and Google would argue that these authors can simply opt out, the comments underscore certain points. First, many authors of unclaimed works undoubtedly share similar concerns. Second, it is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission. Third, there are likely to be many authors — including those whose works will not be scanned by Google until some years in the future — who will simply not know to come forward. (35-36)

There’s a lot going on in here. In particular, the point about “authors of unclaimed works” is so subtle I almost missed it. It’s not just a statement that the silent majority of authors who haven’t yet claimed their works would object to the opt-out system, although it is that. It’s also a point that those authors who haven’t claimed their works are not as effectively served by the opt-out option as those who have written to the court to object. Orphans by their nature can’t opt out. That said, I do wonder whether there is a bit of tension between the claim, above, that the notice program was effective and the claim that many authors won’t know to opt out.

Antitrust

This section is thin and a bit odd. It contains only a single citation to caselaw, and that one’s only a “Cf.” The rest is factual analysis and discussion of objections to the settlement. My take, therefore, is that this is an outline of reasons to be concerned about the settlement’s competitive effects, but not a holding that it actually violates any of the antitrust laws. What are those effects? Google would obtain “a de facto monopoly over unclaimed works” (36), the settlement “would arguably give Google control over the search market” (37), and “Google’s ability to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.” (37)

Privacy

Tim Lee tweeted something interesting about this section this afternoon. He said, “I was really confused by the privacy section. Objections were about user privacy, response about rightholder privacy.” Perhaps that lack of clarity explains this section’s waffling tone:

The privacy concerns are real. Yet, I do not believe that they are a basis in themselves to reject the proposed settlement. … I would think that certain additional privacy protections could be incorporated, while still accommodating Google’s marketing efforts. (40)

This is vague and unhelpful. I’m sure the parties would like to know what “certain additional privacy protections” Judge Chin would like to see. The CDT and EFF proposals seem like they’d be a good starting point for discussion, but there’s not even a gesture in the direction of the specific suggestions in their filings.

International

This section starts by explaining how the settlement is no longer as worldwide as it previously was, but is still broad enough to encompass many foreign rightsholders. It gives a list of countries with objecting copyright owners. The most specific point about how their interests differ from those of domestic copyright owners is a point made by various international publishers, that they will face a more difficult problem searching United States copyright records, due to historical twists in our law on when registration was required.

There then follows a survey of arguments that the settlement violates international treaties … but no legal analysis of whether it does or doesn’t violate them. Instead:

In any event, I need not decide whether the ASA would violate international law. In light of all the circumstances, it is significant that foreign authors, publishers, and, indeed, nations would raise the issue.

I’m not quite sure how to read this. Is it a statement that the fact that foreign rightsholders objected, just by itself, cuts against the settlement? Is it a special sense of deference to foreign nations? Perhaps the best reading is that this is another argument for deferring to Congress:

The fact that other nations object to the ASA, contending that it would violate international principles and treaties, is yet another reason why the matter is best left to Congress.

What Now?

The opinion concludes with a passage recommending that the settlement drop back from an opt-out system to an opt-in system:

In the end, I conclude that the ASA is not fair, adequate, and reasonable. 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.

The next judicial step will be a status conference on April 25 at 4:30 PM. That leaves a month for all concerned to figure out their plans for what happens as the case goes forward. I can see three possible scenarios:

• The parties could try to appeal Judge Chin’s ruling. (This one has procedural complications, which I thought I understood, but now am less sure about.)
• They could redraft a new settlement and offer it for approval.
• They could give up on settlement and go back to litigation.

Google is giving noncommittal answers; the authors and publishers are sounding more like they’re inclining towards revise-and-resubmit. Hilary Ware of Google stated via press release:

This is clearly disappointing, but we’ll review the court’s decision and consider our options.

Scott Turow of the Authors Guild stated via press release:

[W]e’ll be studying Judge Chin’s decision and plan on talking to the publishers and Google with the hope that we can arrive at a settlement within the court’s parameters that makes sense for all parties.

And John Sargent of Macmillan stated via press release:

For that reason, publishers are prepared to modify the Settlement Agreement to gain approval. We plan to work together with Google, the Authors Guild and others to overcome the objections raised by the Court and promote the fundamental principle behind our lawsuit, that copyrighted content cannot be used without the permission of the owner, or outside the law.

If I had to bet, I would guess that we’ll end up with a revised settlement drafted to meet Judge Chin’s specification, which will be approved relatively quickly (at least compared to this last go-round). His opinion is short on specific guidance, but it’s relatively easy to extract the essentials. Here’s what I predict:

• Google is allowed to continue scanning and searching in exchange for cash payments on the order of (but perhaps not exactly) the $60 in the present settlement, and it’s required to provide an opt-out. Very few people have argued that this form of settlement would be beyond the court’s power. The precise explanation of how this would be distinguishable from the present settlement, although quite feasible, will require some nuance and subtlety.
• The Display Uses — Consumer Purchase, Institutional Subscription, etc. — are either gone entirely ore are offered on an opt-in basis. The difference between these two possibilities is not large, since, in effect, Google already offers an opt-in through the Partner Program.
• The libraries receiving digital copies are released from liability but are even more tightly restricted in the uses they can make than under the present settlement.
• The fates of other facets of the settlement such as the Research Corpus, will be hammered out in the negotiations.

My read is that the parties are not enthusiastic about litigation. This has been a long road, they are tired, and the publishing world has moved very quickly from underneath the settlement. They will be happy to have a settlement that lets everyone claim a kind of minor victory, and to be done with the ordeal. A few of the author objectors, who would like to see Google razed to the ground and Mountain View sowed with salt, will continue to object, but most of the others will quietly shuffle away.

And then, the action will shift to Congress. Will Google start putting together a coalition to push for a legislative solution? Who will sign up? What will the proposed compromises look like? Who will oppose it, and with what arguments? And is this the route by which we will get a national digital library?

The Google Books settlement is dead. Long live the digitized book.

Thank you for such a thorough and judicious analysis. It sounds as if the parties will settle and I hope they will find a way to do so which does not restrict access to orphan works. Public interest in the potential of the Internet has not been particularly well served by publishers - had they and other copyright owners been fully sighted on the Web at its inception we would not have seen its extraordinary and beneficial development.

First, thanks for the analysis James and the news links at the Public Index (I used some of them at my Facebook page).

Copyright I tend towards the parties’ position here: the settlement is a license, not a transfer of ownership, so this section doesn’t apply at all. Judge Chin, though, finds it “at a minimum a fair question” (31), although he ultimately concludes that he “need not decide the precise question.”

Section 201(e) of the Copyright Act states:

no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership…

Was not the University of Wisconsin and Google acting in a way that is reserved for copyright holders?

James, Thanks, as always, for your very clear analysis. Your work on this entire issue deserves recognition and gratitude, particularly from those of us involved who are not lawyers. We relied on your running commentary and the work of your students to help us understand the settlement agreement in its various forms.

I’m a little confused by your first prediction: that the opt-out can survive in a revised settlement. Didn’t Judge Chin conclude by stating that the best solution to the wide variety of objections would be an opt-in arrangement?

I do think the publishing world has already moved on. Those who might opt-in to such an arrangement already have a world of better options to bring their works into digital print. But it concerns me if you think an opt-out revised agreement could still go forward.

What strikes me most forcefully about the decision, as you point out, is that it summarizes, as it seems to accept, such a wide range of objections (with exceptions, as noted). It’s the objection letter I wish I had written!

No, there will never, ever be a settlement. You neglected to quote this, which kills it:

Google’s ability to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.

Google Books Search Settlement Rejected http://mikecanex.wordpress.com/2011/03/22/google-books-search-settlement-rejected/

Mike, I disagree. I’m still of the opinion that the underlying conduct in creating a search engine for books is fair use, so Google isn’t able deny its competitors that ability, settlement or no.

Stuart, I read the opinion to be talking almost exclusively about future conduct: selling books. Almost all of the discussion and objections take place in that context. I think the opt-out argument should be read in that context, too: for future conduct, opt-in is required. I suspect that Judge Chin, like the United States in its filing, would consider opt-out acceptable for the past conduct: scanning and searching.

James, I am quoting Chin, who is quoting from the Settlement itself.

This is really, really good stuff James. In fact, I daresay that this blog post—put together in about ten hours, full of deep, substantive analysis about one of the more important tech/law opinions of our day—is the high-water mark for law professor blogging. It’s all downhill from here. The rest of us might as well just start posting cute pictures of kittens from now on, because we can’t do better.

You outline much more clearly many of my own objections to the settlement as an author. However, I agree with Douglas Feven above—-granting Google the right to license is, in fact, a transfer of ownership—-as you note, a license does not grant ownership, but the RIGHT to license is an ownership right.

I have an agent who I grant the exclusive right to represent me. I have that right to choose my licensing agent by copyright law. I didn’t give up my right to control who licenses my work because the Authors Guild and AAP sued Google over copyright violations.

James, near the end of your excellent post, you start your prediction of a revised settlement with the first bullet:

Google is allowed to continue scanning … and it’s required to provide an *opt-out*. Very few people have argued that this form of settlement would be beyond the court’s power.[emphasis added]

Shouldn’t that read opt-in?

James, the minute I posted the question, I reread your predictions and realized the logic of what you were saying. Thanks for clarifying. And glad to see you quoted everywhere!

Rick, no, that’s an “opt-out.” The opt-out there would be from having your book scanned at all.

Mike, the passage you quote from the opinion doesn’t quote from the settlement. It also doesn’t contain a legal finding. To “entrench … market power” is not itself an antitrust violation. If Judge Chin is saying that it would be an antitrust problem for only Google to have access to its scans for search purposes, then I think he is wrong on the law, for reasons that Einer Elhauge has detailed effectively. And even if it is an antitrust violation to allow Google to continue indexing while not allowing competitors to do the same (which I doubt), that could be fixed in a revised settlement by allowing competitors access to the scans, too.

To clarify something in my post—-the settlement assumes the plaintiffs (i.e., the Authors Guild and the AAP) can license Google, i.e., the settlement assumes the AG and AAP have the right to license, which is, to my reading, a transfer of ownership of the right to license without copyright holder permission or agreement—that’s the violation of the Copyright Act that doesn’t seem to be addressed.

I’ve always been baffled by this aspect of the settlement. It doesn’t seem self-evident to me that the plaintiffs (AG and AAP) appointment to represent a class action extends to the power to determine future use of the class’s assets beyond the issue of the suit. Can someone clarify this for me?

James, Thanx. I should have read more closely (noting now your second bullet which has the opt in requirement). It is fairly early here in New Zealand though and I’ve yet to have a coffee ;-)

The interesting thing about your conclusion though is that whilst it may hold true for the US with its overarching fair use exception, here in NZ, the act of scanning alone would be an infringement (none of our more limited fair dealing exceptions would apply).

This of course was the reason Google was never going to make NZ scanned books for which it had not obtained specific permission available in NZ - it was concerned about New Zealand liability.

So, whilst an opt-out arrangement for scanning may be acceptable in the US, we’d need a law change to make it work here. Ironically, if such a revised settlement were to go ahead, it might be just the spur we need to introduce a better fair use regime in NZ.

Actually, Google DID provide an opt-out-of-the-scanning project database soon after the suit was first filed. Copyright owners could enter their books in it. It still exists and you can still enter new books. Although, I gather from various authors that Google hasn’t paid much attention to what was entered there—that is, people opted out books from scanning but found out later that those books had been scanned anyway.

Markdf — I think you and I may be getting at similar results by different means. I think the class action doesn’t authorize the class representatives to negotiate over new and unprecedented future uses. I would rely on the class-action rules to limit this possibility across the board, rather than invoking a copyright-specific prohibition that was drafted with a different set of problems (e.g. totalitarian governments) in mind.

James,

Can you say more about this prediction:

“The libraries receiving digital copies are released from liability but are even more tightly restricted in the uses they can make than under the present settlement.”

It seemed to me that the restrictions in the ASA were pretty tight: i) preserve the files ii) serve the visually impaired ((c) law already allows digitization for this purpose) iii) make replacement copies (already in section 108 of (c)) iv) indexing without display (probably fair use, especially if done by educational institutions) v) use orphan works in accordance with law (duh) vi) “non-consumptive research” - e.g computational linguistics, but no reading of texts. vii) Personal scholarly and classroom use up to 5 copies (which to me reads like a restriction on fair use) viii) support personnel - you can look at the books as part of your job in preserving them, such as looking to make sure that all of the pages are there. But don’t read the text or consume the content. (pp92-96)

Which of those do you think might be taken away? Removing #i would then remove all of the others. That would mean, though, that the libraries have no incentive to cooperate with Google. ii, iii, & v are restatements of the law (am I wrong on that?). vii is a restricted form of fair use, and it seems to me that institutions are already digitizing for classroom use (although the publishers are fighting that). iv is new, so that could be removed. vii is just an adjunct to performing i.

It already seems pretty slim to me, but I have heard that the settlement parties consider it generous.

My sense — and this is only an extreme hunch — is that it would either ask libraries to forego some of their rights under copyright law, or to agree to a more stringent version of the security plan.

James , thank you .

How much would all of this cost the parties ?

James, I think you owe it to Paul Ohm to post a picture of some kittens. Also, I second Stuart Bernstein’s note of appreciation from us non-lawyers.

Today I heard Simon and Schuster CEO Carolyn Reidy call the decision a “way-station to the final settlement” (see my blog) which seems in line with your prediction.

Eric,

Found no way to comment on your blog. But as for “what’s next for the Book Registry,” there are numerous public databases of US books already, many of which are available online. These include the US Copyright Office records, the Worldcat library search engine, Bowker’s Books in Print database, the database of Ingram (the US’s largest book wholesaler), and Amazon. None of these contain every book, but neither does the Registry created for the Google scanning project.

frances, sorry you weren’t able to comment.

The value of the BRR database resides in its connection with rightsholders, not its information about books. it even has connections to the rightsholders that have opted out!

Thanks for the note, James. Same church, different pew. :)

Actually, I do prefer the issue were more viewed from your clarification pov. Thanks for at least making not feel I’m not crazy. (well….)

The US Copyright Office records hold (probably) even more information about US rights holders. As for databases like Bowker, once you can contact one entity involved, say the publisher, if that entity does not hold the rights they can often direct you to whoever does hold the rights.

I am pleased to have come across your excellent summary and comments on Judge Chin’s opinion.

My interest is as a writer and very small publisher, as one who cried loud in objection from the moment the agreement was first published, who has been writing from a writer/publisher’s perspective on copyright for years, and as a UK resident.

My main interest is obvioulsy the international effects of the agreement and of this opinion. I have long felt that, although the US is now [a century behind the rest of the world] a signatory to the Berne Convention, it remains unconvinced.

I am therefore highly sesitive to the strange conflict between the satisfaction with the Notice aspects, and the recognition of the international effects of the agreement. America may have been in ferment about the matter, but most of the rest of the world hardly woke up from a long yawn.

For the rest of the world there was no effective notice at all. And remember, there is no effective way of contacting ‘orphan’ rightsholders, since by definition an ‘orphan’ has lost its parents!

Combine this with the curt and rude response to that being raised - ‘Well you’re here’ - and it is clear the sincerity on that aspect is lacking. Few international objectors could possibly attend; their voice was effectively unheard. That also denies further any validity in class representation - indeed, how do you represent the class orphans?

Judge Chin was very aware of the main plank to Google’s plan - the profits to be made from a monopoly of orphan works. But he had not noticed the invention of the term ‘orphan’ itself; and that is an emotive choice that denies the difference between parental responsibility and ownership of goods.

But there is a problem with accepting almost any parts of the agreement. Allowed to define orphan or out-of-print and to keep scanned copyright works on disc unlawfully, how does one challenge such a deep pocket when mistakes are made? This is a terrifying aspect of the freedom the agreement in almost any form allows.

Further the issue is clouded by the inability to offer any sensible definition of ‘orphan’, since the only ones who can know the status of a work are the publisher and rights holders. Failure to reprint can be for very firm and positive reasons, as well as for neglect and memory and changed lives.

Which leaks over into this very strange composite beast, the principle of ‘out of print’. Neatly, I may say, confused with the concept of our of copyright [in the public domain]. Again, the only people who can determine if a work is out of print are the publisher and copyright owner. It is not a principle, but a practical matter related to each work.

When Google and the combination bring a version back to the court they will not have let go of a lot of these aspects, and if they continue to offer a ‘cloud’ of documents in place of a clear agreement, to confuse all objectors and supporters, we will need to be more on our toes than ever.

Joseph

The emphasis on the desirability of opt-in , rather than opt-out (let alone the earlier ’ you have no choice’) settlement is globally significant.

In the EUs ‘Brussels world’ , there are many who seek to replace copyright with a form of compulsory transaction tax right of groups- for this aim to be creditable , America (and the rest of the world) would have to harmonize with Europe.

The judgment is not a good one for that EU ambition.

John,

There are many EU views I do not share ;-).

But I am not sure what you mean about opt-in versus opt-out. Opt-out is simply a denial of copyright law; opt-in its recognition.

Nor can I see where I put ‘you have no choice’.

The issue is much simpler than any of these grand schemes, which transfer power and control to the state or to big business. Denial of the agreement by Judge Chin has, somewhat confusedly, restored the idea that copyright protects the individual creator, which is in keeping with the Queen Anne Act, The US Constitution and the Berne Convention.

There seems much more smoke than light in the digital age over this. Apart from a few groups thinking free or dirt cheap, and the ever present crooked minds that gravitate to piracy, there seems remarkably little doubt about either the validity of copyright, or the need to pay a decent price for a decent work.

There are certainly better ways to a new Alexandria library of all knowledge.

One of the biggest mistakes is to think that Google, or any group of 600lb gorillas, is the only show in town. And to think that their interests are the interests of the world. What is good for Google is NOT good for the rest of us; we can do without its hands digging round our pockets. Especially if we are creators.

Joseph “Opt-out is simply a denial of copyright law; opt-in its recognition”- I agree completely .

The first version of the settlement would have been effectively binding on every author in virtually the whole world, whether they liked it or not. The second version was to be binding on authors who did not actively choose to opt out; It was the Mark 2 version of the settlement that has just been rejected.

Quite a bit of the smoke you refer to comes from the Licensing industry . It has an obvious interest in conflating copyright- an exclusive individual economic right with compulsory secondary licensing - a right of groups. The registry would have created a lot of management payments , a lot of conferences and above all a lot of undeliverable money- money owed to uncontactable orphans- money that could be redistributed to people known to the industry .

Joseph Harris: “Judge Chin was very aware of the main plank to Google’s plan - the profits to be made from a monopoly of orphan works.”

If so, he must be able to “reconcile logical contradictions with a single decision” (a la Superman): Frances Grimble, another strident voice commenting on this blog, is absolutely convinced that Google had little real interest in the orphaned works and was actually interested in trying to undermine the copyrights of contactable rightsholders of recently published works.

You can’t both be correct, as far as I can see. Frankly, it seems to me from Professor Grimmelmann’s commentary that Judge Chin doesn’t fall into the legal pit of basing his opinion (or even his decision, as far as I can see) on a personal guess about Google’s motives.

Joseph Harris: “There are certainly better ways to a new Alexandria library of all knowledge.”

I’m just burning with curiosity to hear your solution: but don’t post it here, where it would be off-topic; please post it on the “GSB: Open Thread”.

There was no ‘plan’. The GBS is at the primary level , a chimera : an impossible combination of unrelated creatures: an illusion. ‘they exercise all skills at a secondary level’

I think Judge Chin was wrong in focusing on the “snippets” as the reason motivating publishers to sue. Why would they be worried about snippets when most publishers already post far more substantial excerpts online to entice readers to browse before purchasing? Rather, the main reason was Google’s desire to substitute its “opt out” approach for the traditional “opt in” approach of copyright law and make the claim that this was fair use. Additionally, the fact that participating libraries received a free digital copy meant that they did not need to buy such a digital copy from the publisher, thereby directly supplanting a sale (which implicates the fourth factor of fair use). I also disagree that Google’s searching and indexing should be found to be fair use. It would be under precedents in the Ninth Circuit, where “transformative use” has been given a special meaning as any use that serves a different “function,” however mechanical and automatic that function may be (a far cry from fair use traditionally having to do with creative addition of extra value by human beings). But the Ninth Circuit’s approach differs from the Second Circuit’s, and the Google case is being tried in the Second Circuit. Moreover, the Supreme Court has overturned rulings by the Ninth Circuit ten times in a row, mostly unanimously, indicating just how far out from the norm its rulings have been. It is hazardous to rely on Ninth Circuit opinions aS predicting how other courts will rule, let alone the supreme Court.