Google Books Settlement "Not Fair, Adequate, and Reasonable"

This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

A federal court has rejected the settlement agreement in the six year old Google Books litigation. Judge Denny Chin wrote that "[w]hile the digitization of books and the creation of a universal digital library would benefit many, the [settlement] would simply go too far." Judge Chin's main concern: that Google — which has already scanned more than 12 million books — would be able to exploit entire books still under copyright protection without receiving permission from copyright owners. The decision relies heavily on the fact that objections to the settlement "were great in number."

Judge Chin had preliminarily approved the proposed settlement in 2009. But after receiving notice of the proposed settlement, "hundreds of class members objected;" more than 6,800 class members opted out; the U.S. Department of Justice expressed antitrust concerns; and friends of the court submitted a variety of opinions pro, con, and somewhere in the middle. While the decision notes that the settlement mechanism governing the exploitation of unclaimed books "is a matter more suited for Congress than this Court," it concludes by giving the parties another chance to revise the settlement – urging adoption of an "opt in" rather than an "opt out" approach. The court will hold a status conference on April 25th. Meanwhile, it's back to the drawing board for the litigants in this epic battle over copyright and fair use.

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