Judge Denny Chin of the US District Court, who is presiding over the Google Book Search Settlement and was prepared to approve it until legions of opponents came forward, summarizes the dilemma facing all interested parties in his recent order (via the NY Times), taking the impending October 7 final settlement hearing off the calendar:
The current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations, and prominent authors and law professors. Clearly, fair concerns have been raised . . .
[Yet] the settlement would offer many benefits to society, as recognized by supporters of the settlement as well as D.O.J.
Even as it was arguing that the settlement — as negotiated — should be disapproved by the court, the US government argued in favor of the concept:
The United States strongly supports a vibrant marketplace for the electronic distribution of copyrighted works, including in-print, out-of-print, and so-called “orphan” works. The Proposed Settlement has the potential to breathe life into millions of works that are now effectively off limits to the public. By allowing users to search the text of millions of books at no cost, the Proposed Settlement would open the door to new research opportunities. Users with print disabilities would also benefit from the accessibility elements of the Proposed Settlement, and, if the Proposed Settlement were approved, full text access to tens of millions of books would be provided through institutional subscriptions. Finally, the creation of an independent, transparently-operated Book Rights Registry (the “Registry”) that would serve to clarify the copyright status and copyright ownership of out-of-print works would be a welcome development.
So what now?
One optimistic scenario sees all the parties quickly modifying the existing agreement and satisfying the various objections raised by the opponents and US DOJ. But that may be too simple and optimistic. As a practical matter, with many more parties watching and wanting input, it will probably more challenging to reach an agreement. Yet some sort of agreement must be reached.
The settlement ended a class action lawsuit that would presumably be revived if there were no settlement reached. The case has been going on for several years and everyone, including the judge, wants to see it over and done with. Something must happen, the parties are compelled to settle or continue to litigate. But it’s not certain how everyone will get to an agreement that literally satisfies the world.
It’s not clear what will happen. What we’ve got here is what you might call a real cliffhanger.