Some Thoughts on the Google Book Settlement Rejection

I posted a link to the Google Amended Book Settlement opinion yesterday and I would like to offer a few thoughts on it.  Much of the press reacts to the decision with bombast.  Articles with headlines such as Google's Books Strategy in Tatters as Judge Rejects Deal (Siliconrepublic) and Judge Closes Book on Google's Online Library (Slate).  The Siliconrepublic article is interesting as it suggests the Judge had concerns about reader privacy that affected his judgment.  Judge Chin did raise privacy issues brought before the Court and said that they weren't enough to derail the deal.  It was almost a minor point in the opinion.  I suppose anyone can read anything into the 48 page opinion.  James Grimmelmann, a known critic of the deal, provides his balanced analysis here.  His immediate statement is how much and how little the opinion says.  True enough, in that the Court raised any number of points that made approving the deal uncomfortable but not relying on any one of them in particular as being definitive. 

Two points for me out of the many were the strongest.  One was that Congress was the ultimate authority in deciding how orphan works would be treated for future distribution.  Judge Chin noted recent attempts to pass provisions on orphan works had failed.  I don't know if this means Google should spend more money on lobbyists compared to what it spends on lawyers.  Given Patrick Leahy's embrace of tough anti-piracy legislation pleasing the RIAA and the MPAA, it would be directly in Google's benefit in joining the Congressional schmoozing club.  But I digress. 

The other point was the number of foreign objectors who complained their interests were not represented effectively and how the deal would affect international law obligations.  While noting the problem, Judge Chin declined to rule on them.  He basically said with everything going on in the case that the biggest problem was the rights granted to Google for prospective conduct in the case.  Changing the balance to opt in to the business model from opt out would solve a lot of these problems.  I think he recognizes that a lot of people with varying interests would be unhappy if Google went forward with a book project.  By having copyright holders opting in rather than out, they could take their unhappiness somewhere else without affecting any of the parties' ability to conduct business legally.

So I don't think that Google's book strategy is in "tatters."  It's a setback, definitely.  Google's statement is that the company is disappointed in the decision and will decide its options.  I think everyone has too much invested in this to stop it now.  It's just a matter of what form this will all take.  I think the judge is saying that if Google, the publishers, and authors get the mix right while minizing the basis of complaints from the others, there's a good chance the Court will approve the deal: 

In the end, I conclude that the ASA is not fair, adequate, 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 from an "opt-out" settlement to an "opt-in" settlement. (See, e.q., DOJ SO1 23, ECF No. 922; Internet Archive Mem. 10, ECF No. 811). I urge the parties to consider revising the ASA accordingly.

That suggestion may limit what materials may be available initially.  But consider the upside:  all that money used to sway Congress on copyright law revision can be considered a stimulus to the economy.

In one related note, I would like to give a shout out to one of my faculty members at DePaul, Matthew Sag.  Judge Chin cited his article, The Google Book Settlement & the Fair Use Counterfactual, 55 N.Y.L. Sch. L. Rev. 19, 73 (2010) in footnote 2 of the opinion, with a quote from the article continuing on page 3.  Way to go, guy.  [MG]