Out-Law News 2 min. read

US court derails Google book-scan plans


Google's plans to digitise the world's books has been derailed by a New York court which has said that its scheme was not "fair, adequate and reasonable".

Google was sued in 2005 by authors for copyright infringement over its scanning of books. The company reached a settlement in 2008 with authors' and publishers' rights groups. That settlement gave Google the right to scan in any book and place it in a database where it can be accessed by the public.

Under the deal Google could sell the book or place adverts on it. It would give authors 63% of the money it made from books, and authors could opt out of the scheme.

Some authors and publishers objected to the plan, though, arguing that authors' consent should not be assumed and the project should operate on an opt-in basis.

The deal, called the Amended Settlement Agreement (ASA), required court approval and following a 'fairness hearing' in February 2010 the US District Court for the Southern District of New York has said that the arrangement cannot be approved.

"The question presented is whether the ASA is fair, adequate, andreasonable. I conclude that it is not," said Judge Denny Chin.

"While the digitization of books and the creation of auniversal digital library would benefit many, the ASA would simply go too far," said the ruling. "It would permit this class action –which was brought against [Google] 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."

"The ASA 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," said Judge Chin.

Amazon and Microsoft told the Court that the plan violated copyright law and would infringe on Congress's constitutional authority over copyright law, the ruling said, and other objectors told the Court that the plan would grant Google a monopoly over orphan works, in-copyright works whose copyright owners cannot be found.

"The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties," said the ruling.

The judge said that Google should consider reversing the permissions system so that the scheme operates on an opt-in basis rather than an opt-out basis for authors.

"It is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission," said the ruling. "There are likely to be many authors - including those whose works will not be scanned by Google until some years in the future - who will simply not know to come forward."

"Many of the concerns raised in the objections would be ameliorated if the ASA were converted from an 'opt-out' settlement to an 'opt-in' settlement," it said. "I urge the parties to consider revising the ASA accordingly."

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