Google's Books settlement has been rejected by New York court judge Denny Chin, who said it would not be fair to other book-scanning rivals such as Amazon.com.
Google saw its Google Books settlement proposal struck
down by a New York court March 22 for giving the search engine too much power
in the nascent market for digital book sales.
New York District Court Judge Denny Chin said the deal "would give
Google a de facto monopoly over unclaimed
works" and concluded the deal was unfair to rightsholders whose
copyrighted works would be served online without their permission.
Google and the Author's Guild and the Association of
American Publishers in October 2008 inked their Google Book Search settlement,
a plan in which Google would pay rightsholders
$125 million to scan orphan books, or those works for whom authors
can't be found or are unknown. Google has scanned 12 million books online as part of its massive book-scanning project.
Companies such as Amazon.com and Microsoft opposed the
deal, arguing that it would give Google too much control over orphan works in
an increasingly competitive space. The U.S. Justice Department said
the deal might violate antitrust and copyright law.
Google revised the settlement
in November 2009. Judge Chin, who has been reviewing the
deal ever since, issued his judgment based on that revision March 22
While he denied the motion for final approval of the deal, Chin
suggested that the agreement would be more acceptable if it let
rightsholders opt into the settlement before Google can sell their
"In the end, I conclude that the ASA [Amended Settlement Agreement] is not fair,
and reasonable. As the United States and other objectors have noted, many of
the concerns raised in the objections would be ameliorated if the ASA were
converted an 'opt-out' to an 'opt-in' settlement."
Chin left open the possibility to another revision of the current settlement.
Google's Managing Counsel Hilary Ware said Google found the
judgment disappointing but vowed to review the court's decision and consider
"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," Ware added. "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."
Google cannot appeal Chin's decision, so it appears
renegotiating the settlement or scrapping it are its only options at this
point. Google might simply have to pay authors and publishers more money for using copyrighted works.
Gina Talamona, spokeswoman for the DOJ, praised Chin's decision in a statement e-mailed to eWEEK:
"We believe the Court reached the right result on
this complex, proposed settlement. The department expressed to the Court that,
as structured, the settlement proposed by Google and the authors and publishers
exceeded the scope of the underlying lawsuit on which it was based and created
concerns regarding antitrust, class certification and copyright issues."