Posted by Victoria Strauss for Writer Beware

If you thought that Judge Denny Chin’s denial of the Google Book Settlement last March was the end of that story, you were wrong. In the absence of a settlement agreement, the 2005 lawsuit brought by the Authors Guild and various publishers against Google for copyright infringement, due to Google’s scanning of in-copyright books, must proceed. Currently, the parties to the lawsuit are trying to craft a new settlement.

Judge Chin is getting impatient with the pace of the discussions, though, and at a status conference on Tuesday, he basically told the parties to get off the stick or else proceed with litigation. The next status conference is set for September 15.

What’s really interesting is that it now appears that the parties are discussing an opt-in agreement–where Google would have to seek authors’ permission before scanning in-copyright works and placing them in its vast book database–rather than the original opt-out agreement–where Google scanned without permission, and works were automatically included in the database unless authors directed Google to remove them. The opt-out provision drew much criticism, since it reverses a basic tenet of copyright law; it was one of Judge Chin’s major reasons for rejecting the Settlement.

It’s hard to see how a full-on opt-in agreement would be attractive to Google. Its vision is to create a universal digital library which will include all the books in the world; an opt-in agreement could sharply limit that, forcing it to invest enormous time and effort in contacting authors, and prevent it from including large numbers of works for which it couldn’t locate copyright holders.


Will Google agree to an opt-in settlement? If the parties come up with one, will it really be opt-in (for instance, will Google be allowed to go on scanning books and databasing them, as long as it only displays snippets of text–which is the arrangement it has come to with some European countries, but exactly the issue that spurred the original lawsuit)? If there’s no agreement, will Google decide to take its chances in court? Stay tuned.

The statement below was released by the Authors Guild on Wednesday. There’s also a more detailed analysis from James Grimmelmann, one of the most informed and objective commentators on this long-drawn-out drama.

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July 20, 2011.

At a brief status conference yesterday morning before Judge Denny Chin, the parties to our copyright infringement lawsuit against Google requested additional time to explore a revised settlement. Judge Chin set the next status conference for September 15, but urged the parties to move quickly with their discussions, saying that he was inclined to put the litigation on a tight discovery deadline if a settlement isn’t reached by then.

On March 22nd, Judge Chin rejected a proposed settlement of the litigation, saying that “many of the concerns raised in the objections would be ameliorated if the ASA [the Amended Settlement Agreement] were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement. I urge the parties to consider revising the ASA accordingly.” (Judge Chin’s March 22nd opinion is available here.)

Since that ruling, the parties have been in discussions about an opt-in settlement to the dispute.

Yesterday’s status conference was the second since Judge Chin rejected the proposed settlement.