Google Books Settlement Remains Unsettled

The ongoing saga of the Google Books case will continue, according to a recent opinion from the judge overseeing the negotiated settlement. Google Books prompted a 2005 suit for copyright infringement because the service offered snippets of copyrighted material for viewing free-of-charge. The parties in the class action suit have been wrestling over a settlement since 2008. The most recent version of the settlement would, among other things, set up a registry for so-called orphan works (items still in copyright, but without an identifiable rights holder) and allow Google to make more of the copyrighted works it has scanned available for view and possibly for printing. Rights holders would receive some compensation for this permission and associated sales, but Google would retain exclusive access rights to a large number of books (though libraries and universities would be able to purchase subscriptions).

There are several concerns about the settlement, including the status of international rights holders (the matter is a U.S. court case), and possible privacy infringements for those who browse Google Books. But the focus of this week’s opinion was on two areas: the copyright for orphan works and antitrust concerns. Each of those two areas relates to another concern – that the proposed settlement goes beyond addressing the harms that brought the suit about in the first place. The arrangements to handle distribution and copyright claims for orphan works are better suited for Congress to decide than the courts, and the initial case was limited to the showing of snippets of copyrighted material, not of whole works of copyrighted material.

As envisioned in the settlement, it would be possible for a copyright owner to lose their rights because they do not opt out of the agreement. This is a noted break with past practice with respect to copyright owners, who are generally considered to have the right to do (or not) what they wish with respect to their works, and other parties seeking to use the work have the responsibility to obtain rights to it. Because orphan works are a significant portion of the works at issue in this case, it would be possible for someone who owns the copyright to a work to have it used by Google not only without their consent but without their knowledge.

From the antitrust perspective, because Google is the only private entity engaged in the scanning of large amounts of copyrighted material (especially orphan works), they would have significant advantages in the markets for these works and for indexes to this work. Third parties can access, index, and display snippets of material Google has, but only if they have entered into agreements with Google. Part of the advantage to Google in market dominance comes from the shifts in copyright burden from third parties to copyright holders.

The court has kept open the possibility of another revised settlement, encouraging the parties in its opinion to consider shifting the opt out requirement of the agreement to an opt in. This would appear to address most of the copyright concerns outlined in its opinion. A settlement conference is scheduled for April 25 to discuss further progress in the matter.

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