Federal Judge Voids Settlement Between Google Books and Publishing Groups

By Tracey E. Schelmetic March 23, 2011

A New York federal judge today overturned a November 2008 agreement between Google's Google Books initiative and several groups representing authors and publishers, reports PC Magazine. Judge Denny Chin's ruling calls for both sides to return to the table to negotiate another settlement agreement. The judge has scheduled a status conference for April 25.

The Amended Settlement Agreement (ASA), as it was known, was drawn up between Google, which has been attempting to digitize millions of books as part of its Google Books program, and the publishing and authors' groups, which filed suit over rights concerns. The judge ruled that the scope of the settlement was too broad. “The question presented is whether the ASA [the Amended Settlement Agreement] is fair, adequate and reasonable,” wrote Judge Chin. “I conclude that it is not.”

“While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far,” explains court documents. “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 [Amended Settle Agreement] 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 settlement would have granted Google the right to display excerpts of out-of-print books, even if they are not in the public domain or authorized by publishers to appear in Google Books. When the settlement was initially announced in mid-2009, opposition flooded in from lawyers on behalf of Microsoft, the Electronic Frontier Foundation, and a coalition called the Open Book Alliance who decried it as anti-competitive, reported CNet.

“Google and the plaintiff publishers secretly negotiated for 29 months to produce a horizontal price fixing combination, effected and reinforced by a digital book distribution monopoly,” a lawyer for the Open Book Alliance said at the time. “Their guile has cleared much of the field in digital book distribution, shielding Google from meaningful competition.”

The settlement was revised, largely due to demands presented by the European Union, but concerns remained that the agreement would give Google too much power over out-of-print book titles. Google has digitized over 12 million books since the original 2004 announcement of Google Books and its set of partnerships with several major universities to digitize their research libraries. In 2005, the class action suit was filed over the fact that many of the out-of-print books included in the mass scanning were still under copyright.

The Authors Guild said that it chose to settle rather than go to court because it didn't want to repeat the well-publicized mistakes that the music industry made while policing digital piracy.

Google lawyers commented on Judge Chin's ruling. “This is clearly disappointing, but we'll review the Court's decision and consider our options,” said Google managing counsel Hilary Ware. “Like many others, we believe this agreement has the potential to open up access to millions of books that are currently hard to find in the U.S. today. Regardless of the outcome, we'll continue to work to make more of the world's books discoverable online through Google Books and Google eBooks.”


Tracey Schelmetic is a contributing editor for TechZone360. To read more of Tracey's articles, please visit her columnist page.

Edited by Tammy Wolf

TechZone360 Contributor

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