Google Books Settlement – an update

Here is an update following the article in the November/December 2009 issue.

On 18 February 18 US District Judge Denny Chin, who is considering the terms of the Google Books settlement, announced that he would “end the suspense” by revealing that he would not rule on the settlement just yet. It is reported that there have been more than 500 submissions about Google’s proposed $125 million settlement of a class action from 2005. The action was filed against Google by authors and publishers who had accused the search engine giant of copyright infringement for scanning collections of books.

The US Justice Department recommended in September 2009 that the agreement be rejected. Faced with this and other opposition, including very vocally from various governments in the European Union, Google and the authors and publishers made a number of changes to the settlement and announced a revised deal in November 2009. As an example of the concessions made by Google, they eliminated books published in most of the non-English speaking world and gave funds earned from unclaimed or orphan works to an independent fiduciary rather than the registry itself.

Whilst these changes have silenced certain critics, the agreement remains hotly disputed by many, not least some of Google’s major competitors. It is reported that Microsoft and, for example, have objected to the settlement on the grounds of it giving Google an unfair competitive advantage. There are also significant privacy concerns, particularly around the fact that Google might be able to track the reading habits of end-users and collate data on that usage.

From a copyright perspective, the concept of having to “opt out” of the scheme rather than an “opt in” appears to be a difficult one for many rights holders. In contrast with the “opt out” requirement of the Google Books Settlement, for example, the European book-scanning project known as “Europeana” requires permission from copyright holders before books are scanned.

It is not yet clear how Judge Denny Chin will view the proposed settlement and there are likely to be more exchanges between the various competing parties. Either way, some commentators expect that the matter will eventually end up before the US Supreme Court. This is a story that will run for some time yet and it remains to be seen how issues relating to copyright, privacy and competition law will influence the digitisation of books in the US, and how that will impact on policies in Europe and elsewhere.

Emmet O’Grady is an Associate with Arthur Cox Solicitors, Dublin.