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February 25 – March 4, 2010 Edition

Ruling on Google Settlement Could Take Weeks

A decision over the controversial Google settlement with the Author’s Guild and American Association of Publishers, now lies in the hands of U.S. District Court Judge Denny Chin following a fairness hearing that took place in a crowded New York courtroom on February 18.

Judge Chin is expected to take weeks, or even longer, to deliver his decision, which almost certainly will be appealed regardless of how he rules. Should Chin rule in favor it would allow Google to create the world’s largest online library without authors’ permission, a move that may well violate longstanding US Copyright laws.

Chin said he had received volumes of comments from the public that merited careful consideration. “There’s too much to digest,” Chin said. “I have an open mind.” Several attorneys at the hearing said they expect a ruling to take weeks, if not longer.

The list of opposing speakers included the US Department of Justice, as well as children’s book authors, privacy advocates and business competitors such as Amazon and Microsoft.

Those against the $125 million settlement argued that it would give Google a free hand to scan and publish digital editions of millions of out-of-print titles with little or no approval from authors or publishers.

In questioning Google, Judge Chin asked, “If you did an opt-in [to the Google settlement] you would eliminate a lot of objections,” Chin noted, reiterating arguments from the Justice Department and the nonprofit Internet Archives.

The judge also asked about so-called orphan works, whose authors and rights holders can’t be found. Google and its critics have sparred over how many books fall into that category, with estimates from a few million to tens of millions of titles. Google has said it would try to find rights holders of these works. Critics argue that the deal is designed to give Google exclusive rights to these works and protect it from lawsuits from rights holders.

“I would surmise that Google wants the orphan books and this is what it is about — orphan books that will remain unclaimed,” Chin said.

Google’s attorney, Daralyn Durie, argued that the opt-out structure was appropriate because it presented no economic harms to those rights holders, whose out-of-print books weren’t available for sale and thus they weren’t receiving compensation for the works. Google’s attorney argued that the settlement provides an incentive for rights holders to come forward and receive monetary rewards.

William Cavanaugh, deputy assistant secretary for the Department of Justice antitrust division, said “In forward-looking businesses, Google wants complete immunity.”

Google issued a statement immediately following the hearing saying that it believes “the settlement strikes the right balance and should not be destroyed to satisfy the particular interests of the objectors.”

At the hearing 21 people spoke in opposition of the settlement and five spoke in favor.

For background stories on the complicated subject, search for “Google Settlement” at www.authorlink.com