This guide is the latest in a series prepared by LCA legal counsel Jonathan Band to help inform the library community about this landmark legal dispute.

In the Guide Part IV, Band explains why the Court rejected the proposed class action settlement, which would have allowed Google to engage in a wide variety of activities using scanned books.

As stated in the guide, “The court concluded that the settlement was unfair because a substantial number of class members [i.e., authors and publishers] voiced significant concerns with the settlement.… However, the validity of the objections seemed less important to the court than the fact that many class members raised them.”

As for the impact of the decision on libraries, Band writes that while it is too early to say what the parties will do next, “it appears that both the challenges and the opportunities presented to libraries by the settlement when it was announced in the fall of 2008 are growing narrower and more distant.”

Past guides and other LCA materials related to the case are available on the LCA website.

On March 22 Judge Chin, for the U.S. District Court Southern District of New York, rejected the settlement among the parties in The Author’s Guild et al. v. Google Inc.  In his opinion, he stated that,

While the digitization of books and the creation of a universal digital library would benefit many, the [Amended Settlement Agreement] ASA would simply go too far.  It would permit this class action – which was brought against defendant Google Inc. to challenge its scanning of books and display of “snippets” for on-line searching – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners.  Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

The announcement of Judge Chin’s decision is just in time for March Madness.   If you recall, the Library Copyright Alliance’s legal consultant on copyright, Jonathan Band, devised a handy GBS March Madness chart last year at this time depicting the possible paths forward with the settlement.  So now, perhaps we’ve reached the “Final Four?”  Potential options for moving forward include: 1) appealing the decision, 2) negotiating a new agreement, 3) moving forward with litigation, or 4) walking away.

It’s too early to speculate with some certainty what will happen next.  In the meantime the American Library Association, along with Association of College and Research Libraries and the Association of Research Libraries, are working on a brief analysis of the Judge’s decision that will be made available soon.

Carrie Russell, Director, Program on Public Access to Information

Corey Williams, Association Director, Office of  Government Relations

D Is for Digitize Symposium

The D is for Digitize conference, held October 8-10, 2009, was devoted to respectful and thoughtful discussion of the issues raised by the proposed Google Books settlement.  This symposium issue of the New York Law School Law Review continues the conversation with seven essays from D Is for Digitize participants.  These essays, representing a wide range of viewpoints on the settlement, analyze it in terms of copyright, antitrust, information policy, international law, culture, and more.  They will be essential reading for anyone interested in the settlement and its implications.

Table of Contents:

James Grimmelmann, D Is for Digitize: An Introduction (http://bit.ly/fay3EN)
Matthew Sag, The Google Book Settlement and the Fair Use Counterfactual (http://bit.ly/gW0hFd)
Lateef Mtima and Steven D. Jamar, Fulfilling the Copyright Social Justice Promise: Digitizing Textual Information (http://bit.ly/eS0Azx)
Bernard Lang, Orphan Works and the Google Book Search Settlement: An International Perspective (http://bit.ly/hVZzCF)
Katharina de la Durantaye, H Is For Harmonization: The Google Book Search Settlement and Orphan Works Legislation in the European Union (http://bit.ly/giEKPJ)
Christopher Suarez, Continued DOJ Oversight of the Google Book Search Settlement: Defending Our Public Values and Protecting Competition (http://bit.ly/dZROyp)
Mary Murrell, Digital + Library: Mass Book Digitization as Collective Inquiry (http://bit.ly/hz3zPA)
Daniel Reetz, The Why in DIY Book Scanning (http://bit.ly/fq63Vn)

The issue may be downloaded from the Law Review’s website at http://www.nyls.edu/lawreview.
For more information on the settlement, visit the Public Index at http://www.thepublicindex.org.

Google Book Settlement Panel (1 of 4) from ALA Washington on Vimeo.

Google Book Settlement (2 of 4) from ALA Washington on Vimeo.

Google Book Settlement (3 of 4) from ALA Washington on Vimeo.

Google Book Settlement (4 of 4) from ALA Washington on Vimeo.

The American Library Association’s (ALA) Washington Office will host a panel discussion on the proposed Google Book Search (GBS) settlement during the association’s annual conference in Washington.

The session, titled “Panel Discussion on Life after the Google Book Search (GBS) Settlement,” will be held from 10:30 a.m. to noon on Saturday, June 26, in Washington Convention Center, Room 151B.

A panel of speakers, mediated by Jonathan Band, intellectual property attorney and counsel for the ALA, will discuss what the outcome of the proposed GBS settlement will mean for the future of libraries and digitization efforts.

Panelists include the following: James Grimmelmann, Professor, New York University Law School; Marybeth Peters, Register of Copyrights, U.S. Copyright Office; Mark Sandler, Director, Center for Library Initiatives, Committee on Institutional Cooperation (CIC); and Johanna Shelton, Senior Policy Council, Google.

Now that the fairness hearing on the Google Books Settlement has occurred, it is up to Judge Chin to decide whether the amended settlement agreement (ASA), submitted to the Court by Google, the Authors Guild, and the Association of American Publishers, is “fair, reasonable, and adequate.” As the diagram shows, however, Judge Chin’s decision is only the next step in a very complex legal proceeding that could take a dozen more turns before reaching resolution. Despite the complexity of the diagram, it does not reflect every possible twist in the case, nor does it address the substantive reasons why a certain outcome may occur or the impact of Congressional intervention through legislation. As Band states, “the precise way forward is more difficult to predict than the NCAA tournament.  And although the next step in the GBS saga may occur this March, many more NCAA tournaments will come and go before the buzzer sounds on this dispute.”

To view the diagram, please visit: http://www.librarycopyrightalliance.org/bm~doc/gbs-march-madness-diagram-final.pdf

The Library Copyright Alliance is a coalition of library associations made up of the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries. More information about LCA is available at http://www.librarycopyrightalliance.org/.

WASHINGTON, D.C. – The American Library Association (ALA), the Association of College and Research Libraries (ACRL) and the Association of Research Libraries (ARL) recently sent a letter to the U.S. Department of Justice (DOJ) asking for ongoing judicial oversight of the Google Book Search settlement, if approved.

The library associations urge the DOJ to request the court to review the pricing of the institutional subscriptions to ensure that the economic objectives set forth in the settlement agreement are met. Libraries, as the potential primary customers of institutional subscriptions, are concerned that the absence of competition could result in profit-maximizing pricing.

The associations also expressed disappointment with the DOJ’s failure to urge the parties to the settlement, which include Google, the Authors Guild, and the Association of American Publishers, to require representation of academic authors on the Book Rights Registry board. As the groups explained in their filings with the court and in their meeting with the DOJ, academic authors wrote the vast majority of the books Google will include in its database. Without representation of academic authors, the Books Rights Registry may establish a pricing model that maximizes profit rather than public access to academic works.

December 15, 2009 Letter to DOJ

WASHINGTON – The American Library Association (ALA), the Association of Research Libraries (ARL) and the Association of College and Research Libraries (ACRL) announce the release of “A Guide for the Perplexed Part III: The Amended Settlement Agreement.” The guide describes the major changes in the amended settlement agreement (ASA), submitted to the Court by Google, the Authors Guild and the Association of American Publishers on November 13, 2009, with emphasis on those changes relevant to libraries.

While many of the amendments will have little direct impact on libraries, the ASA significantly reduces the scope of the settlement because it excludes most books published outside of the United States.  In addition, the ASA provides the Book Rights Registry the authority to increase the number of free public access terminals in public libraries that had initially been set at one per library building, among other changes.

Looking ahead, the Court has accepted the parties’ recommended schedule and set January 28, 2010, as the deadline for class members to opt out of the ASA or to file objections, and February 4, 2010, as the deadline for the Department of Justice to file its comments.  The Court will hold the fairness hearing on February 18, 2010.

A Guide for the Perplexed Part III: The Amended Settlement Agreement