PDF link to Judge Chin's Decision Rejecting Google Books Settlement
nysd.uscourts.gov
nysd.uscourts.gov
1. Class actions are meant to resolve past wrongs and not to do business deals affecting future rights of parties.
2. Therefore, the best thing to do is take this issue to Congress, which ultimately has the constitutional power to fashion copyright rights and remedies.
3. It is quite unfair to give Google default rights to exploit all works ever written as to which the copyright holders are unknown. This is unfair to the authors and it is unfair to Google's competitors.
4. Opt-out might work well in a typical class action where an individual claim might amount to a few dollars. It would work a terrible miscarriage of justice, however, to say that each of the authors who fails to take affirmative steps to protect his copyright loses such rights to Google.
5. Unlike the typical class action, the objections made by class members were numerous, articulate, and strongly asserted. If the class members in whose name this action is supposedly brought have such strong feelings that it is unfair to them, that is a very bad indicator concerning the overall fairness of the settlement.
My personal view: the judge here reacted strongly to the idea that a party such as Google could engage in mass copying of copyrighted works and then use the courts and the class action as vehicles by which to foist a forced, global licensing deal on the unwilling parties affected by its actions.
The only way Google could swing this through this mechanism is if the court approved the opt-out procedure. Since most parties do not get notice at all, and most do not opt out, Google would get near-universal control of all published works by this method.
By declaring that this would only be fair if an opt-in procedure is used, the judge effectively killed this as an effective mechanism for Google. This means that no one is bound by the terms unless that party takes proactive steps to become bound. By definition, then, the authors who do not receive notice, and all other cases where the copyright holders are unknown, will be excluded from the settlement and Google will get no rights to their works.
This is a devastating blow to Google's book project. Unless it is overturned on appeal, it will be very hard to salvage this project (at least in anywhere near the form Google hopes) given this decision.
Theoretically I would have made $75 or so out of the existing settlement for a little-read tech book I wrote back in the 90s, but I'd rather see it become available again digitally than worry over payment. I must say I found navigating the settlement website vastly more pleasant than dealing with the publisher, who my rights in a much more invidious fashion.
With few exceptions, the difficult of locating the rights-holders for obscure and orphan literary works stems from their lack of literary or commercial value: if the copyright had been worth protecting, someone would have maintained an active claim of ownership. The number of valuable works whose copyright owners cannot be located is small - in the worst case, they'll be inaccessible to internet readers in the short term but will become available later when the copyright expires. But in most cases, readers won't be missing much. The truly dedicated can still go to a physical library which has a paper copy.
You seem to think I prefer the opt-in approach; in fact I was perfectly fine with the existing settlement offer, and I'm sorry that it has been rejected by the court. All I am saying is the court's rejection could have been worse, and Google may choose to live with the loss of the suggested alternative. Now it's going to go through another year or three of legal wrangling, which will limit further investment by Google, slow deployment of the technology, and reduce startup opportunities based on leveraging the Books API.
Nor am I blind to the inconvenience for researchers and scholars that an opt-in or other limitations might impose. As a matter of fact I'm dealing with that exact problem right now: there is a book-length government report that I very much want to study for a personal research project, but thanks to a legislative scheduling snafu back in 1995 no funds were ever allocated to print or archive it properly (it's not classified or anything). There is one typewritten manuscript copy stored in the Library of Congress and one photocopy of that stored in an agency archive. That's it - only two publicly accessible copies exist. There's an interesting backstory, but right now my choices are to spend $150 to have someone in Washington DC photocopy the whole thing or to wait until I have time, cash and an excuse to visit DC and spend a day copying it myself at a (slightly) lower cost. Copyright isn't at issue here, but trust me, I'm keenly aware of the frustration that arises from knowing something exists but being unable to easily access it.
Its just frustrating how we let these arm-twisting lawsuit-happy sleezeballs become the gatekeepers of the entire body of knowledge the human race has ever produced.
On the other hand, it's only very recently that the digital distribution has become universally available at negligible cost. Up to very recently, the cost of providing a single copy on demand was so high that only mass production made any economic sense, and few authors had the resources or desire to invest the required amounts of time and money. So if it wasn't for the publishers, humanity's body of knowledge would be all that large in the first place. A few centuries back, printing and publishing were the edgy disruptive industries which upset the existing model of hand-copying manuscripts for powerful patrons like the aristocracy and religious institutions. Rather than worrying about the general public downloading and copying, those gatekeepers were worried about the general public having the ability to purchase and read things for themselves, instead of being told what a priest or sheriff thought fit for them to know - and a good many publishers along the way paid for their insistence on democratizing information with liberty or even life.
So their failure to adjust to near-zero marginal costs of copying over the last ~30 years other than via outsize lawsuits seems relatively mild in the historical scheme of things. I think the key to speeding this transition is to provide authors, editors, and other people whose creative work is a necessary input with better ways to make a living than working for a publisher. Up to now, marketing and distributing content or creative services (eg editing) has been too difficult and expensive for individuals to offer a good return...which is one reason that marketing often accounts for 75% of a publishing launch budget nowadays.
I believe he would approve such an agreement after reading through his thoughts.
End story, Google probably will get to pay hundreds of millions to save the world's books from rotting; they probably won't get to own the digital advertising rights to all those books de-facto.
(It's a direct .pdf link.)