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Last week, Federal District Court Judge Denny Chin rejected a landmark agreement between Google and groups representing authors and publishers, an agreement that would have permitted Google to scan nearly all copyrighted books into its databases and provide snippets of those books to the public through its Google Books project. In 2005, a large number of authors and publishers filed suit against Google alleging massive copyright infringement. Instead of engaging in an all-out legal battle, the parties came together to reach a $125 million settlement in which Google agreed to pay copyright holders whose copyrights had already allegedly been infringed. However, the settlement provided an “opt-out” provision for future works scanned – under the class action agreement, authors and copyright holders could prevent their works from being scanned only if they gave notice of their desire not to be included in the Google Books project. Under the agreement, if authors or publishers failed to opt out of the program, Google would have maintained the right to scan the written materials and provide snippets of them online. As part of the agreement, a portion of advertising revenues corresponding with the number of views of books online would have gone to both publishers and authors.
Because of the “opt-out” provision, had this settlement gone into effect, Google would have essentially been granted a monopoly over orphan works, or books whose copyright holder cannot be found or contacted. Furthermore, Google would not have been liable for copyright infringement for posting orphan works online. This would have given Google the right to millions of books to which no other organization would have legal access. In his ruling, Judge Chin made it clear that this “opt-out” provision was the reason behind his rejection of the settlement, stating that it was up to Congress to tackle the issue of orphan works, not a legal agreement between private organizations. Chin also suggested that if Google were to enter into a similar settlement with copyright holders in which authors and publishers would “opt-in” to the project, many of his worries would be ameliorated.
With this settlement rejection, the future availability of copyrighted works on Google Books has become uncertain. Publishers and authors must now decide whether or not to pursue their current copyright infringement suits against Google. In addition to appealing Judge Chin’s ruling, Google will likely lobby Congress to tackle the issue of orphan works, hoping that legislation will be passed allowing for the publication of such materials if the copyright holder cannot be found. Until then, the project is on hold.
– Stephen Josey
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