The Amended Google Book Settlement: Judge Chin's Decision

• Author: Marybeth Peters
• Position: Former United States Register of Copyrights (1994 to 2010)
• Pages: 9-11

9

The class action lawsuit brought by authors and book

publishers against Google in 2005 alleged willful copyright

infringement in connec tion with Google’s s ystematic

reproduction, without permission, of millions of copy-

righted books, in their entirety. Google accomplished this

through scanning operations set up in large research

libraries, such as those of the universities of Michigan,

Stanford and Harvard. Once scanned, the books were

indexed electronically, allowing users of Google to search

by title and other bibliographic information and to view

“snippets” – sever al lines of copy righted tex t. While

Google’s search engine is free to users, Google collects

substantial revenue from the advertising that appears on

its web pages, including those on which images of, and

information from, copyrighted books appear. At least 15

million books have been scanned by Google, the vast

majority of which are still protected by copyright. Google

argued that its actions were covered by fair use.

About class actions

A class action is a form of lawsuit in which a large group of

people collectively le a single action. It originated in the

United States, where it is widely used. A limited number

of European countries allow class actions, typically when

a large number of consumers are involved. In the United

States, class actions are governed by Rule 23 of the Federal

Rules of Civil Procedure. To proceed as a class action, the

questions of law or fact must be common to all, as must

the claims or defenses of the representative parties. A

settlement agreement approved by the court will bind

everyone, with the exception of those who eectively opt-

out. Class actions have been relatively rare in copyright

infringement cases.

The US$125 million settlement agreement, announced

on Oc tober 28, 2008, was preliminarily approved on

November 17, 2008, by Judge Sprizzo. A complex docu-

ment of hundreds of pages, including numerous appen-

dices, it went far beyond the alleged acts of infringe-

ment and created extensive new business models for

Google. It applied to huge numbers of authors and books.

Specically, for books rst or simultaneously published

in the United States, it applied only to those that had

been registered with the United States Copyright Oce.

However, for all other books, it applied to all those pub-

lished anywhere before January 5, 2009. Obviously, an

extremely large number of foreign works was included. To

be excluded from the agreement, authors and copyright

owners had to opt-out of the settlement agreement on

a title-by-title basis – a complicated process – by early

May 2009. This and other dates were reset after outcries

from aected parties. The last day to eectively opt-out

of the settlement was xed for September 8, 2009; the

court hearing, or “fairness hearing,” was scheduled for

October 7, 2009.

In a cla ss ac tion settleme nt agr eement, the judge

must decide whether the agreement is “fair, adequate

and reaso nable”. There was much opposition to the

Google agreement, including from the governments

of th e United States, Germany and France and from

numerous authors, publishers, literary agents, technol-

ogy companies and others. Google and the litigating

parties became concerned. This l ed to many meet-

ings w ith those unhappy w ith the terms of the set-

tlement, and various compromises requiring changes

to the agreement were reached. The last ocial ling

was the Statement of Interest of the United States on

September 18, 2009. After a meeting with the parties,

the United States brief was adjusted to not only express

its legal concerns about the scope of the agreement

but, because of the potential benets included in the

settlement, to urge the court to postpone the hearing

to give the parties the opportunity to revise the agree-

THE AMENDED

GOOGLE BOOK

SETTLEMENT:

Judge Chin’s

deCision

On Ma rch 22, 2011, J udge Den ny Chin issued his long -awaited decision on the proposed Google Book

Amende d Settl ement Agreement stemmi ng from a class a ction lawsuit brought by authors and b ook

publish ers in 2005. Ms. Maryb eth Peters, former United States Reg ister of Copyrig hts (1994 to 2010 ) takes

a close r look at t he Amended Settlement Agreement and Judge Chin’s deci sion.

>>>