Judge Danny Chin: "Before the Court is plaintiffs' motion pursuant ,to Rule
23 of the Federal Rules of Civil Procedure for final approval of
the proposed settlement of this class action on the terms set
forth in the Amended Settlement Agreement (the "ASA"). The
question presented is whether the ASA is fair, adequate, and
reasonable. I conclude that it is not."
Nine significant snippets:
1) "...the establishment of a mechanism for exploiting
unclaimed books is a matter more suited for Congress than this
Court. (p. 22)
2)...the ASA would also raise
international concerns, and foreign countries, authors, and
publishers have asserted that the ASA would violate international
law. For this reason as well, the matter is better left for
Congress. (p. 24)
3)... the ASA would release claims well beyond those
contemplated by the pleadings. (p. 24) ...Google did not scan the books to make them available for purchase, and, indeed, Google would have no colorable defense
to a claim of infringement based on the unauthorized copying and
selling or other exploitation of entire copyrighted books.
Yet, the ASA would grant Google the right to sell full access to
copyrighted works that it otherwise would have no right to
exploit. (p. 26)
4)... it is incongruous with the purpose of the copyright laws
to place the onus on copyright owners to come forward to protect
their rights when Google copied their works without first seeking
their permission (p. 35)
5) Google's ability to deny competitors the ability to search orphan books
would further entrench Google's market power in the online search
market (p. 37)
6) The privacy concerns are real. Yet, I do not believe
that they are a basis in themselves to reject the proposed settlement (p. 39)
7)...many foreign copyright owners remain
members of the class because they registered their works with the
U.S. Copyright Office...Google responds that "this case is about United States
copyright interests. It's about uses of works in the United
States."... This argument, however, ignores the impact the ASA would have on foreign
rightsholders. In any event, I need not decide whether the ASA
would violate international law. In light of all the
circumstances, it is significant that foreign authors,
publishers, and, indeed, nations would raise the issue. (p. 43)
8) The fact that other nations object to the ASA, contending that it would violate international principles and treaties, is yet another reason why
the matter is best left to Congress (p. 45)
9)...many of the concerns raised in the
objections would be ameliorated if the ASA were converted from an
"opt-out" settlement to an "opt-in" settlement." (p. 46).
(Last October I delivered a speech on this topic at a conference organized by the Italian Competition Authority, see presentation).
23 of the Federal Rules of Civil Procedure for final approval of
the proposed settlement of this class action on the terms set
forth in the Amended Settlement Agreement (the "ASA"). The
question presented is whether the ASA is fair, adequate, and
reasonable. I conclude that it is not."
Nine significant snippets:
1) "...the establishment of a mechanism for exploiting
unclaimed books is a matter more suited for Congress than this
Court. (p. 22)
2)...the ASA would also raise
international concerns, and foreign countries, authors, and
publishers have asserted that the ASA would violate international
law. For this reason as well, the matter is better left for
Congress. (p. 24)
3)... the ASA would release claims well beyond those
contemplated by the pleadings. (p. 24) ...Google did not scan the books to make them available for purchase, and, indeed, Google would have no colorable defense
to a claim of infringement based on the unauthorized copying and
selling or other exploitation of entire copyrighted books.
Yet, the ASA would grant Google the right to sell full access to
copyrighted works that it otherwise would have no right to
exploit. (p. 26)
4)... it is incongruous with the purpose of the copyright laws
to place the onus on copyright owners to come forward to protect
their rights when Google copied their works without first seeking
their permission (p. 35)
5) Google's ability to deny competitors the ability to search orphan books
would further entrench Google's market power in the online search
market (p. 37)
6) The privacy concerns are real. Yet, I do not believe
that they are a basis in themselves to reject the proposed settlement (p. 39)
7)...many foreign copyright owners remain
members of the class because they registered their works with the
U.S. Copyright Office...Google responds that "this case is about United States
copyright interests. It's about uses of works in the United
States."... This argument, however, ignores the impact the ASA would have on foreign
rightsholders. In any event, I need not decide whether the ASA
would violate international law. In light of all the
circumstances, it is significant that foreign authors,
publishers, and, indeed, nations would raise the issue. (p. 43)
8) The fact that other nations object to the ASA, contending that it would violate international principles and treaties, is yet another reason why
the matter is best left to Congress (p. 45)
9)...many of the concerns raised in the
objections would be ameliorated if the ASA were converted from an
"opt-out" settlement to an "opt-in" settlement." (p. 46).
(Last October I delivered a speech on this topic at a conference organized by the Italian Competition Authority, see presentation).
