When Google launched what Jeffrey Toobin called "Google's Moon Shot" - its audacious move to digitize the holdings of research libraries in order to make them searchable, Google argued that they were indexing books, not sharing copies of them, so it wasn't infringement. That argument never made it to court. As Toobin predicted in 2007, Google would settle out of court. And, as Patricia Schroeder, then president of the Association of American Publishers, told Toobin, it wouldn't be a settlement designed for the public good. “This is basically a business deal," she said.
And that is a large part of why Judge Denny Chin pulled the plug today, rejecting the settlement. Fundamentally, he disagreed with idea that those who didn't want to participate had to opt out or lose their rights. The settlement would give Google an advantage over competitors who had not infringed copyrights. Further, Chin found that a class action law suit (that many members of the class objected to) was not the appropriate means of determining the fate of the multitude of books trapped in uncertain copyright limbo. "The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties."
The judge also gave a nod toward the Department of Justice's complaint that the class action took what was a copyright complaint and turned it into a proposal for a profitable and far-reaching business endeavor. The Google project would cease being a search engine and instead become a retail platform; not a virtual library, but a bookstore, selling books that could not legally be bought from any other vendor. For the sake of a business opportunity, an organization that normally defends intellectual property rights of authors had decided to negotiate them away, requiring rights holders to take action to protect their ownership or lose their rights in order to monetize a vast pool of works that had been legally off limits and would for all practical purposes remain off limits to any company other than Google.
In many ways this is a deeply frustrating situation. A vast percentage of all books ever published are in an untouchable state, many of them possibly still under copyright but out of print and with rights holders out of reach. Thanks to the continual erosion of the public domain through repeated copyright extensions, we've made a large portion of our cultural history virtually inaccessible. Congress, which is constitutionally authorized to make copyright decisions, has failed to make reasonable arrangements to let those books be used to "promote the progress of science and useful arts."
The judge recommends that the settlement be rewritten to let authors opt in, rather than automatically covering all members of the class that don't opt out; that, however, doesn't address the issue of orphan works, which is at the heart of the Google deal. No doubt there will be many more developments before this is all over. If you want to see what might come next, check out Jonathan Band's fantastic March Madness chart.