The heavily criticized proposed settlement between Google and a small group of authors and publishers has been dealt a final, fatal blow, reports Publishers Weekly this morning—although in this case the deathblow comes indirectly because it’s actually about a different, older legal battle.
In case you need a recap of what this is all about, the Google Books Amended Settlement Agreement (ASA) was a proposed agreement arranged by some publishers, authors, and author groups as a way to create a compensation and licensing system for Google Book Search, which uses the full text of copyrighted books to provide snippets in search results. Some authors and publishers claim that what Google is doing with Book Search amounts to widespread copyright infringement instead of fair use. For those authors and publishers who had sued Google, the proposed settlement would have protected them from the risk of losing on fair use grounds if the suit proceeded. More controversially, it would have also implemented an opt-out system (instead of opt-in) for authors, and an arbitration system that favored Google and publishers at the expense of authors’ rights. From a competition perspective, it would have also shielded Google from more lawsuits, while leaving competitors unprotected.
U.S. District Court Judge Denny Chin rejected the ASA this past March, noting among other things that it went too far in giving Google special privileges (especially regarding orphaned works), and that the opt-out system was unfair to authors. While that pretty much left it dead in its current state, it also left the door open for Google and the plaintiffs to amend the agreement and try again.
But with yesterday’s rejection of a settlement in Freelance, it looks like there’s no possible way for the ASA to proceed.
Freelance is a class action case from the 90s (actually Tasini v. New York Times), and it involves freelance writers who claimed newspapers didn’t have permission to post their work online without compensation. Its relevance to the ASA is that in both lawsuits, the plaintiffs tried to create a single class out of all authors who might be affected by the issue, and yesterday’s Second Circuit Court of Appeals said that was more or less impossible:
In a 2-1 ruling, the second circuit yesterday held that the district court which approved a settlement between freelance writers and publishers in the class action case known shorthand as Freelance “abused its discretion in certifying the class and approving the Settlement, because the named plaintiffs failed to adequately represent the interests of all class members.”
In really plain language, essentially the judges who rejected Freelance‘s settlement yesterday acknowledged that getting all authors to agree to the same thing is like herding cats, and therefore you can’t put all authors in a single class and claim to represent their collective best interests. There may indeed be no such thing as “collective best interests” when it comes to authors.
So what happens next for Google Book Search? The plaintiffs could move forward with the suit, but it’s a considerable gamble because if they lose, then they’ll have inadvertently expanded the definition of fair use. Personally I think that’s great for society, but it’s not necessarily so great for publishers’ business models, hence their outrage at Google.
Another possible byproduct of the death of the ASA is that Google’s competitors can move forward with their own digitization projects. They’ll be assuming the same risk of lawsuits over copyright that Google is now facing, but at least they now know that Google isn’t about to carve out a special protected arrangement that will give it an unbeatable competitive edge.