Now that Judge Denny Chin has rejected the settlement that we all had hoped would be the end of this story, where do we stand? Presumably the parties will get together to try and patch things up. Judge Chin did sign-post the direction they need to go in, so maybe it’ll work. The idea behind Google Books is a noble one, even if it stands to make an already rich company even richer. The idea that we could all access at any time all the books ever published sounds too good to be true.  Maybe it is.

It doesn’t upset me that Google stands to have a competitive advantage over the likes of Amazon and Microsoft in this area.  It was after all they who went ahead and digitized all that stuff.  Nobody said Amazon wasn’t allowed to do the same. Microsoft did actually start in on the task, but abandoned the effort fairly quickly. No doubt they figured out that that commercial advantage wasn’t really going to amount to a lot (of money) so the game wasn’t worth the candle. Of course if they can get some payback from the courts why wouldn’t they accept that?

In its 28 April issue The New York Review of Books has a good article by Robert Darnton. Of course he is really keener on a National Digital Library, but that suffers from the problem that what we have in front of us is not that, and does represent a huge amount of expenditure. We couldn’t realistically afford to buy Google out in the current political climate in Washington, so the compromise of fixing up the deal before us is probably the closest we’ll get to that ideal.

The main provisions of the Settlement were 1. Google would be authorized to scan, index, and make non-display use of all the books they had scanned from libraries around the world. (Though foreign books were one of the hurdles at which the settlement fell.) 2. The way access to these books would be provided was defined, including Preview (supported by advertising), Online consumer access, Institutional subscription, Public access service, Print-on-demand, Digital download. 3. Access for In Print books would not be allowed. 4. Access would be by default available for all Out of Print books. 5. The Book Rights Registry was established as an independent, non-profit organization to identify and locate rightsholders, and to distribute ultimate revenues to them. Michael Healy is its Executive Director Designate. Rightsholders would receive notification of the settlement and would control their own level of participation — the amount displayed (which could be zero) and the price charged for it.

Under the settlement just rejected there was a deadline of 31 March 2011 for claiming as your own, books which had been scanned.  Publishers and/or authors had to go to and register as the “owner” of a book and be set up to receive payments for usage.  The deadline for withdrawing books altogether was 9 March 2012. I wonder if publishers with thousands of titles in the database ever got round to registering. I did: one minimum opus didn’t represent a mountain of work. Of course, no doubt the dealline will have to be extended under any new agreement.

One of the controversial issues has always been”orphan works”. These are books no longer in print whose copyright owner has not been identified. It represents a huge number of works, and the assumption on which the settlement worked was that rightsholders of such works would be assumed to have opted in.  Monies earned for these works would be held for 10 years during which time it was hoped the owner would be identified.  If after 10 years no rightsholder had been found the monies would be distributed to charities. The rights of these unfound rightsholders were deemed by Judge Chin to have been infringed. If we don’t know who they are how can we assume they would want to opt in?