Judge Denny Chin, of the US District Court for the Southern District of New York, said “the question presented [to the Court] is whether the ASA is fair, adequate, and reasonable. I conclude that it is not”.
The latest twist in the Google Book saga is a heavy blow for the internet giant, whose desire to digitalise most of the world’s books dates back to 2005, when it was first sued by a number of authors for copyright infringement after Google had started scanning the first books. Although the ASA was reached in 2009 - stating that authors’ consent to publish their books is presumed unless they explicitly object - a number of writers and publishers, as well as the US Department of Justice, kept rejecting the deal and said Google should operate on an ‘opt-in’ basis (consent should be given explicitly), rather than ASA’s opt-out regime. Following these objections, the ASA was subject to a ‘fairness hearing’ in February 2010 and Judge Chin ruled back then the deal could not be approved. Now, 13 months down the line, Chin has come to the same conclusion.
Once Google has swallowed the latest legal disappointment, it will realise it has become unlikely US courts are going to approve any settlement that continues to include an opt-out arrangement. In its current form, the courts simply won’t buy it. Judge Chin clearly stated that “many 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”. He ‘urged’ the parties “to consider revising the ASA accordingly”.
Undoubtedly, Google will do anything to prevent an ‘opt-in’ system. Under such a regime, it will take much longer to establish a ‘global online library’ - since Google will have to ask each and every author for their approval - it will be costlier (some authors will demand individual arrangements) and it will be impossible to include ‘orphan books’ - works that are still under copyright protection but whose right holders cannot be located.
What should have become a page turner, is slowly turning into a never ending story. Judge Chin has decided a ‘status conference’ will take place on 25 April, where Google can outline its next steps and everyone will get a taste of what the next chapter is going to be like.
Published previously in a London monthly magazine. Michiel Willems, March 2011. Copyights apply.