The Association of American Publishers has said that it will work with Google and the US Authors Guild "to overcome the objections" to the revised Google Settlement, after a New York judge threw it out of court. After some 13 months of deliberations, the judge finally ruled yesterday (22nd March) that the revised Google Book Settlement was not "fair, adequate, and reasonable" and has denied final approval.
Judge Denny Chin has instead told the parties to redraft the settlement as an "opt-in" rather than an "opt-out" settlement, and has set a date of 25th April for a status conference at which the parties will be able to outline their next steps.
Objectors to the Settlement heralded the verdict as a "victory", but others warned that without litigation Google could simply continue its mass-digitisation programme that was effectively halted by the agreement. The US Authors Guild said the judgment had "left the door open for a revised agreement". Authors Guild president Scott Turow said: "Although this Alexandria of out-of-print books appears lost at the moment, we'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.” But Google was non-committal, a press statement read: "This is clearly disappointing, but we’ll review the court’s decision and consider our options."
In court documents filed yesterday (22nd March), Chin said: "While the digitisation of books and the creation of a universal digital library would benefit many, the Amended Settlement Agreement (ASA) would simply go too far. It would permit this class action—which was brought against defendant Google Inc to challenge its scanning of books and display of 'snippets' for online 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 beyond those presented in the case."
Chin added: "In the end, I conclude that the ASA is not fair, adequate, and reasonable. As the United States and other objectors have noted, may 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 motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement."
John Sargent, c.e.o. of Macmillan USA, speaking on behalf of the publisher plaintiffs (The McGraw-Hill Companies; Pearson Education; Penguin Group; Simon & Schuster; John Wiley; Association of American Publishers; Harlequin Enterprises Limited; Macmillan Publishers Limited; Melbourne University Publishing Limited; The Text Publishing Company), said: "While the March 22 decision of US District Court Judge Denny Chin on the Google Book Settlement Agreement that was filed on November 13, 2009 is not the final approval we were hoping for, it provides clear guidance to all parties as to what modifications are necessary for its approval. The publisher plaintiffs are prepared to enter into a narrower Settlement along those lines to take advantage of its groundbreaking opportunities. We hope the other parties will do so as well.”
New York Law School professor James Grimmelmann, who has long followed and blogged about the Settlement, said he expected a new agreement to be approved relatively quickly: "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."