March 24, 2011

After the Google decision … what?

by

So on the day after one of the most important developments in the history of the book — Judge Denny Chin‘s decision to reject the Google Books Settlement case (see yesterday’s Moby coverage) — what was the reaction amongst publishing insiders in New York? In general, it ran the gamut between “Uh-oh” and “Huh?”

A Publishers Weekly report discusses what the next legal step is … and comes away unsure: “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…. But it is still unclear whether an appeal has much chance of success, and … there are some procedural hurdles to an appeal.” Plus, “it is not a sure bet that appeal would be accepted by the Second Circuit.”

The PW story also makes clear how Judge Chin’s decimation of Google’s “opt-out” requirement is to any attempt to move forward on a new deal. For one thing, it takes away the huge, free library of “orphan” books Google was banking on. As one attorney explains to PW, “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, 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.” (Meanwhile, a succinct report from the Wall Street Journal clarifies the fairness problems inherent with an opt-in system.)

That attorney — Scott Gant, a Washington class-action lawyer — also notes that, in the decision, Chin noted no one group could fairly represent all the different kinds of rights holders involved … and 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.”

Still, as a New York Times report observes, “Google, which has already scanned 15 million books, is unlikely to give up.” The paper cites more legal experts predicting Google is likely to start a lobbying effort to get Congress to pass legislation that would essentially give them the world’s orphan titles and finish their privatization of the public library system.

But the Times report also raises an interesting point about an option open to the publishing industry: “They could drop or revive their original copyright lawsuit against Google, which claimed that even Google’s more modest initial plan to scan books and show snippets of their text was illegal. Those issues have never been litigated.”

Well, while everyone seems stymied as to how to proceed and what that means for, say, the Google Ebookstore — is Google going to go ahead with it if they can’t sell all those free orphan books? — many of us are clear on the fact that overall, the decision is a very good thing for book culture. As Robert Darnton puts it in a New York Times op-ed column today, “This decision is a victory for the public good, preventing one company from monopolizing access to our common cultural heritage.”

Dennis Johnson is the founder of MobyLives, and the co-founder and co-publisher of Melville House.

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