08.05.09 | Caroline Turner
On Tuesday, the New York Court extended certain (but not all) of the key deadlines in the Google Settlement, following requests to allow more time to consider its implications. Grounds for requesting the extension included that the time afforded to analyse the numerous implications of the settlement was inadequate. Other objections assert that the Notice of the Settlement is defective under US law as it is unclear and does not identify which works may be affected by the settlement.
Most notably, the US Justice Department is now examining accusations that the settlement is anti-competitive regarding orphan works. Since the rights-holder(s) to orphan works will not opt out of the settlement, Google will have carte blanche to exploit such orphan works with impunity if the settlement is approved. This will give Google an unfair advantage since other users can only exploit orphan works with the risk of potential legal liability should the rights-holder(s) eventually come forward. For now, the court has granted a four-month extension with the effect that:
1. The deadline to opt out of the settlement (so as to reserve rights to sue Google for past infringements) has changed to 4th September 2009;
2. The deadline to submit objections to the settlement has also changed to 4th September 2009;
3. The Fairness Hearing (following which the court will decide whether to approve the settlement) has been rescheduled to 7th October 2009.
Rights-holders should note that other key dates have not changed, including:
4. The deadline to register US copyright remains at 5th January 2009—consequently any work which was published first in the US but which was not registered at the US Copyright Office by 5th January 2009 will not be eligible for compensation under the settlement;
5. The deadline to submit claims for compensation remains at 5th January 2010; and
6. The deadline to remove books from the database or direct Google not to digitise books remains 5th April 2011.
The extension will enable everyone to evaluate the settlement. The extended timeframe is still short compared to the timetable that would apply should a similar regime be introduced via legislation rather than via a settlement. It seems likely that other objections will be raised between now and 4th September as further ramifications are realised.
Rights-holders should think of this deal as their pre-nup with Google and heed the saying “marry in haste and repent at leisure”.