The failure of the amended Google Settlement presents a huge opportunity for the global publishing industry to get its house in order, according to one of the agreement’s sternest critics.
However, Tuesday's [22nd March] decision to reject the settlement as not "fair, adequate, and reasonable" has lead others to say the development has left the industry without a roadmap for dealing with Google, orphan works and the use of copyrighted materials in Google’s database.
The settlement was thrown out by New York judge Denny Chin this week, after over a year of deliberations. Chin has told the parties to consider redrafting the proposal on an "opt-in" basis, but it remains unclear whether even then it would be passed. He set a date of 25th April for a status conference at which the parties will be able to outline their next steps. An appeal, which few think would work, could however extend this deadline further, allowing all parties to agree a way forward.
In Europe, where many of the objectors resided, the judge's decision has been broadly welcomed. Tim Godfray, chief executive of the Booksellers Association said: “We have always taken the view that the Amended Settlement Agreement, if approved, would give Google a significant advantage over its competitors. As such it would have been a bridge too far."
Copyright Licensing Agency chief executive Kevin Fitzgerald, said: "We fully support digital publishing but the proposed settlement would have granted Google full access to copyrighted works that it otherwise would have no right to exploit."
The German Publishers and Booksellers Association (Börsenverein des Deutschen Buchhandels) said it was an "important day for copyright law". Dr Gottfried Honnefelder, president of the Börsenverein, added: "The ruling by Judge Chin demonstrates to the entire world that intellectual property rights cannot be suspended for private or commercial interests."
Both the original litigants, the Association of American Publishers and the US Authors Guild, have said they are prepared to renegotiate. Google commented in a brief statement, which said: “This is clearly disappointing, but we’ll review the court’s decision and consider our options.”
Martyn Daniels, who blogs for the Booksellers Association, 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."
The agreement dates back to 2005 when the US Authors Guild and AAP both filed suits in order to stop Google digitising copyrighted and orphan works. The suit was originally settled in 2008, and an amended settlement put forward before the judge in late 2009. The revised settlement was supported by the UK Publishers Association, and included UK books that were hoovered up by Google’s digitisation programme in the US.