Readers may recall that at the time of our last article on this topic the United States District Court was reviewing an amended settlement agreement which would have allowed Google to make millions of books available online. Last week, the Court rejected that agreement in a decision which represents a significant setback for Google’s ambitious plan.
By way of background, the agreement would have bound all those persons who as of January 2009 owned a US copyright interest in a book. Most importantly, rightsholders in out of print books would give Google the non-exclusive right to scan and commercialise their books going forward, unless they opt out.
Opponents of the agreement argued that the opt out mechanism would result in an involuntary transfer of copyrights and that this is a violation of US copyright law. Others argued that copyright holders were given inadequate notice of the agreement, and that it would result in Google having a monopoly over digital books. The Court was persuaded by these concerns despite the benefits such a comprehensive digital library would have for society.
Judge Chin considered the concerns could be ameliorated by changing the opt-out mechanism to an opt-in mechanism (which would result in voluntary transfers of copyright in accordance with US copyright law, and a reduction in the monopoly concern), and urged the parties to consider revising the agreement accordingly. However, given Google has previously said that requiring authors to opt in to the agreement would unacceptably limit the scope of its project, it will be interesting to see how Google responds.
A status conference to discuss the possibility of going to trial is scheduled for 25 April. We will continue to update readers as events unfold.