Google Books settlement takes it on the Chin

I raised questions about the Google Books settlement ages ago.

Now some of them have been answered, and Judge Denny Chin’s answer is “no”:

While the digitization of books and the creation of a universal digital library would benefit many, the [Amended Settlement Agreement] would simply go too far.  It would permit this class action – –  which was brought against defendant Google Inc. (“Google”) to challenge its scanning of books and display of  “snippets” for on-line searching – –   to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners.  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 beyondthose presented in the case. . . .

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.  The ASA would grant Google control over the digital commercialization of millions of books, including orphan books and other unclaimed works.  And it would do so even though Google engaged in wholesale, blatant copying, without first obtaining copyright permissions.  While its competitors went through the “painstaking” and “costly” process of obtaining permissions before scanning copyrighted books, “Google bycomparison took a shortcut by copying anything and everything regardless of copyright status.”   As one objector put it:  “Google pursued its copyright project in calculated disregard of authors’ rights.  Its business plan was:  ‘So, sue me.'”  . . . .

A copyright owner’s right to exclude others from usinghis property is fundamental and beyond dispute.  See Fox FilmCorp. v. Doyal, 286 U.S. 123, 127 (1932) (“The owner of thecopyright, if he pleases, may refrain from vending or licensingand content himself with simply exercising the right to exclude others from using his property.”).  As counsel for Amazon argued: “[T]he law of the United States is a copyright owner may sit back, do nothing and enjoy his property rights untrammeled byothers exploiting his works without permission.”   Under the ASA, however, if copyright owners sitback and do nothing, they lose their rights. Absent class members who fail to opt out will be deemed to have released their rights even as to future infringing conduct. “Copyright owners who are not aware that the [ASA] affects their interest[s] unknowingly leave Google to decide how their books are used.”

Man!

And you know… he’s right, isn’t he?

Note this additional part about the “orphan works” concern — arguably a sop thrown in by Google as a big, fat “information wants to be free” rationalization for the project:

The questions of who should be entrusted withguardianship over orphan books, under what terms, and with whatsafeguards are matters more appropriately decided by Congressthan through an agreement among private, self-interested parties. Indeed, the Supreme Court has held that “it is generally forCongress, not the courts, to decide how best to pursue theCopyright Clause’s objectives.”  Eldred v. Ashcroft, 537 U.S.186, 212 (2003)

Not even GOOGLE?

Yeah, that will leave a mark.  There’s so much more.  You simply have to read it.  Bottom line:

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

The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement.

Otherwise, Judge Chin, how did you like the settlement?  Hat tip to Brozik.