Further Update: Google Book Settlement

September 4, 2009 was the deadline by which any oppositions to the Google Book Settlement were to be filed. The hearing is still scheduled to proceed on October 7, 2009, and numerous non-parties to the settlement have requested the Court’s permission to attend the hearing and present their arguments. In a docket entry from September 2, however, Judge Denny Chin’s response to one request to appear appears as follows: “As for permission to speak at the hearing, the Court will address this question in a future order. We need to see how many requests there are to speak.” Authors’ Guild v. Google, Inc., No. 05-8136, Item No. 216 (9/2/09).

There have been numerous opt-out letters filed with the Court, as well as objections and requests for approval of the settlement. In addition to the individual authors or publishers who have filed their objections, numerous other groups have similarly filed seeking outright rejection of the agreement or at least critical modifications:

* Australian Society of Authors (Item Nos. 102, 111 in the Docket)
* A Japanese publishers’ association (Ryutaikyo, Tokyo) (Item No. 116)
* “500 crime writers from Germany, Austria and Switzerland” (SYNDIKAT) (Item No. 119)
* The Federal Republic of Germany (Item No. 179)
* Amazon.com (Item No. 206)
* The American Society of Media Photographers, Inc., Graphic Artists Guild, Picture Archive Counsel of America, North American Nature Photography Association and several individuals (Item No. 218)
* DC Comics (Item No. 238)
* Consumer Watchdog (Item Nos. 261, 263)
* Japan P.E.N. Club (Item No. 264)
* Canadian Standards Association (Item No. 272)
* Microsoft Corporation (Item No. 276)
* Connecticut Attorney General Richard Blumenthal (Item No. 278)
* Privacy Authors and Publishers (Item No. 281)
* Open Book Alliance (Item No. 282) – this is a group previously described in the docket as “a coalition of diverse organizations including Amazon.com Inc., The American Society of Journalists and Authors, The Counsel of Literary Magazines and Presses, Microsoft Corporation, The New York Library Association, Small Press Distribution, The Special Libraries Assocaition, and Yahoo! Inc., as well as the Internet Archive.” (Item No. 183)
* The French Republic (Item No. 287)
* Yahoo! Inc. (Item No. 288)
* The Internet Archive (Item No. 291)
* Lyrasis, Inc., Nylink and Bibliographic Center for Research Rocky Mountain, Inc. (Item No. 291)
* Free Software Foundation, Inc. (Item No. 293)
* Proquest LLC (Item No. 296)
* Songwriters’ Guild of America (Item No. 297)

Some have filed their requests for approval of the settlement, or at least registered their agreement with certain provisions or goals of the settlement:

* The American Association of People with Disabilities (AAPD) (Item No. 125)
* The United States Student Association (USSA) (Item No. 138)
* The United States Distance Learning Association (USDLA) (Item No. 139)
* Sony Electronics, Inc. (Item Nos. 148, 274)
* Antitrust Law and Economics Professors (Item No. 275)

** Please note that I have not read each of the submissions in depth – either oppositions or requests for approval – but have relied almost exclusively on the text in each docket entry to determine whether a party opposes or supports the agreement. I would encourage you to read the specific submissions of the parties that are of interest to you before reaching a more substantive conclusion than that they filed a letter, motion, memorandum of law or amicus brief in support or in opposition to the settlement.

Some of the submissions are very emotional and argumentative. Many are written by non-lawyers making arguments using persuasive or rhetorical language. Some have been filed in their native languages without an attached translation. (E.g., Letter from Dr. Else Maria Wischermann, filed in German at Item No. 110).

The recurring themes in these objections are: 1) the potential monopoly created in Google’s favor – at the very least with respect to orphan works, whose rights holders cannot be immediately identified; 2) the lack of any requirement of a reasonable search for the owner of an orphaned work before the scanning and distribution would occur; 3) indeterminate definitions of key terms – including those identifying which works would be covered by the agreement and the Book Rights Registry, and those that would not; 4) the blanket permission for Google to proceed with its scanning and monetizing project unless authors/publishers/other owners opt out; 5) the apparent permission given by an American court for Google to copy/scan/distribute/store digitally the works created and currently owned by foreign authors; and 6) Google’s ability to retain an apparently unreasonably high fee from each work.

Regardless of the pros and cons of the settlement reached in this case, it appears to have raised significant concerns on both sides. It is also clear that the number of parties who have requested permission to present their arguments to the Court during the hearing would be too numerous for the Court to entertain during a single day of argument. Unless the Court decides to extend the hearing over several days, the list of those attending and presenting their arguments orally undoubtedly will be limited.

Given the nature of the oppositions and support received thus far, this promises to be a very interesting hearing. One hopes that the decision the Court eventually reaches will balance effectively the equities of both the public at large (with the interest of being able to access as many creative and educational works as possible) and the copyright holders (who should be able to control the distribution and further use of their works, and be compensated reasonably for those who wish to access them). I look forward to reading the opinion.