In the hours after Judge Denny Chin rejected the proposed Google Book Settlement, publishers and the Authors Guild said they were open to narrowing the scope of the proposed settlement in order to get a revised deal approved, while Google said it “would consider its options.” But after more than two years debating the settlement pros and cons, one thing is clear: the visionary arrangement once on the table is history. This morning, the parties will confront what comes next, and the rest of us what that might mean for the digitization of books.
In a detailed blog post, New York Law School professor James Grimmelmann said he sees three scenarios: the parties could try to appeal Judge Chin’s ruling; they could redraft a new settlement, along the opt-in lines suggested by Chin; or, they could go back to litigation. “If I had to bet, I would guess that we’ll end up with a revised settlement drafted to meet Judge Chin’s specification,” Grimmelmann said.
The most immediate question, of course, is whether the parties will appeal. Most likely, the answer is yes, legal experts say, noting that at the very least, an appeal would buy time and a little breathing room while the parties revisit the prospect of yet another amended agreement process. “With so much invested to date, an appeal poses comparatively modest costs and few downsides,” blogged Columbia University copyright lawyer Kenneth Crews.
But it is still unclear whether an appeal has much chance of success, and Grimmelmann told PW there are some procedural hurdles to an appeal. While he says the parties could surely find some grounds on which to file an appeal, it is not a sure bet that appeal would be accepted by the Second Circuit. Scott Gant, a GBS objector and a class action attorney at Washington D.C.-based firm Boies, Schiller, Flexner, doesn’t think an appeal is likely to succeed. Gant told PW that Chin appears to have written a “a solid,” relatively appeal-proof decision. “In terms of errors that could help Google,” he said, “I don’t see any.”
As for a revised agreement, legal experts agree that Chin offered a pretty clear-cut path by encouraging a resubmitted, scaled-back opt-in settlement. The problem is, we’ve been down this road before. In September, 2009, when the Justice Department essentially killed the first draft of a settlement, it suggested that an opt-in settlement could work, and there was much talk of a “road-map” to success. That road map was rejected by the parties, however, as they declined to address this ultimately fatal flaw in their amended agreement.
That was not by oversight. An opt-in deal holds significantly less allure for the parties, especially for Google. For one, there would be no orphan works, and thus the library database envisioned by the plan would be significantly less valuable. “The attractiveness of the proposed settlement to Google is that if conferred to them all kinds of benefits that they couldn’t have gotten otherwise," Gant explains, "benefits that flowed from being an opt-out agreement. If you flip this from an opt-out agreement to an opt-in, all those benefits disappear.” It remains to be seen if the prospect of no settlement at all is enough to make the opt-in agreement palatable.
Another impediment to a revised agreement is that, legally speaking, cobbling one together may not be quite so simple. For one, Gant has argued, and Chin seems to agree, that there are class issues, and any future agreement would likely require the creation of new subclasses. “No any one group can represent the amalgam of all these rights holders,“ Gant told PW. He adds that in the coming weeks, new lawsuits could also be filed against Google, either by individuals, or by groups, as Google, after spending the better part of a decade furiously scanning library books, now finds itself sitting on millions of potential infringements, absent a settlement. And finally, despite Chin’s praise for the lawyers in his rejection, Gant says he would not be surprised if there was a challenge mounted to current counsel. “These lawyers have all been committed to making this case go away, and others may say enough is enough, let someone come in and really litigate the case, instead of trying to do business deals.”
The other option, of course, is that Google could choose litigate the case. It could roll up its sleeves and roll the dice on the sweeping fair use argument it initially rested the program on, though observers say that seems unlikely. “My read is that the parties are not enthusiastic about litigation. This has been a long road, they are tired, and the publishing world has moved very quickly from underneath the settlement,” Grimmelmann observes. “They will be happy to have a settlement that lets everyone claim a kind of minor victory, and to be done with the ordeal. A few of the author objectors, who would like to see Google razed to the ground and Mountain View sowed with salt, will continue to object, but most of the others will quietly shuffle away.”
No one wins, yet
Have you ever wondered how the Tea Party would view funding a big digital library? Or how Republicans and Democrats would ever come together on such a massive project? Aside from the the legal game still left to play, those may be the larger questions raised by Chin's rejection.
Throughout his decision, Chin invokes Congress as the proper venue for many of the mechanisms envisioned by the Google settlement. And, notes Grimmelmann, the action may very well shift to Congress. “Will Google start putting together a coalition to push for a legislative solution? Who will sign up? What will the proposed compromises look like? Who will oppose it, and with what arguments? And, is this the route by which we will get a national digital library?”
In a statement, the settlement's most organized and implacable critics, the Open Book Alliance, reiterated its desire to come together on the key issues. "The Open Book Alliance looks forward to participating in a collaborative process that will focus on developing an open digital public library created to serve the public interest that respects the rights of creators while promoting innovation and competition."
Whether for or against the settlement, it is hard to deny the clear benefits it would have brought. Throughout the process, the parties have rested their settlement on those public benefits. The public will now see exactly how committed the parties, as well as the objectors, are to realizing those benefts. Grimmelmann neatly captured the state of play: "The Google Books Settlement is dead," he blogged. "Long live the digitized book."