Judge Chin rejects AAP/Google settlement

I'll say more when I've read it, but I put a copy on the Internet Archive.

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After reading:

The judge's decision holds no real surprises. His analysis is fully consistent with the reactions of the interested parties to the case. He rejects the settlement primarily on these grounds:

• It seems that a significant segment of the class of authors/publishers is not happy with the settlement. "Some 6800 class members opted out." (p.10) Also, a majority of the comments on the proposed settlement were negative, many coming from non-US copyright holders who did not identify with the class.
• The settlement would make significant alterations to the current copyright regime, which should be a matter for Congress rather than the court.
• The settlement's conclusion would go beyond the original lawsuit, which was over the digitization of in-copyright works by Google and the presentation of snippets relating to searches. The settlement would allow sales of full text works, which was never an issue at the time of the original lawsuit.

Although he rejects the settlement on numerous grounds, the judge concludes by saying "...many of the concerns raised in the objections would be ameliorated if the ASA were converted from an "out-out" settlement to an "opt-in" settlement." (p. 46) This leaves the door open for yet another settlement attempt between the parties.

It is important to note that the position of digitization and ebooks today are vastly different than they were in 2005 when the authors and publishers first sued Google over its library digitization project. It is possible that if the question of Google's digitizing were to be put forth for the first time today, the actions of the parties and the results would be vastly different. This is clearly a case where technology has moved forward at a rapid pace while the courts were contemplating an agreement that was standing still.

What now?

It's hard to believe that Google and the AAP/AG have not prepared themselves for this possibility. Yet, certain activities have gone forward as if the settlement were already approved.

• A form of the Book Rights Registry is in place in the sense that there is a database of digitized works and a way to claim them to receive the proposed one-time payment. Presumably that payment is now not going to happen, but meanwhile Google has a large database with copyright holder information (including contact info, if I remember the form correctly).
• The BRR has a chosen Director (Michael Healey).
  
• It isn't clear if Google has continued digitizing books that are under copyright without specific permission. To be sure they have made many deals with publishers and with libraries to digitize works since the 2008 date when the settlement was first proposed, and digitization has gone forward.
• Some libraries that had partnered with Google prior to the lawsuit have negotiated new contracts that are compatible with some of the conditions contained in the settlement. I don't know if these contracts have been signed or have been awaiting the result of the lawsuit but I do recall that the libraries obtained less rights in relation to retaining copies of their digitized books in the new contracts than they did in the old. The upshot being it isn't clear where this leaves the partner libraries, nor organizations like HathiTrust who are involved in the storage and possible uses of the Google digitized books.
• For libraries and institutions that were looking forward to subscription access to the books, this access is now a big question mark. It was dependent on conditions in the settlement.

There are undoubtedly many other issues that are now open questions. When the settlement was first announced I began a "question list." It might be a good idea to revive that given this new perspective. And for those wondering "what now?" (that is, all of us) there's a flow chart.