On Thursday, October 4, 2012, the Association of American Publishers announced that it had reached a settlement with Google, Inc. in regard to their seven-year-old copyright dispute over the Google Library Project, under which Google planned to scan and make available to the public every book ever published in digital form. The precise terms of the deal have not yet been made public, but Google has backed away from the “opt-out” model that contributed to derailing its proposed settlement in 2011, and, instead, Google has agreed to an “opt-in” model: going forward, publishers will have to negotiate and execute discrete and individual deals with Google for scanning their complete catalogs of book publications.
Settling with the AAP may mean that Google is half way home, but the more difficult litigant in the seven-year-old dispute, the Author’s Guild, is still proceeding with its class action lawsuit against Google. When the Author’s Guild tried to settle with Google in 2008, hundreds of its members who are individual members of the class, stridently objected, and some, like the eminent Ursula K. Le Guin, even resigned from the Guild (see my earlier article: “A Day in Court for the Google Books Settlement.” Further, the settlement was eventually rejected by the presiding U.S. District Court Judge, Denny Chin. Although some commentators have been hopeful that the opt-in model will appeal to members of the Authors Guild, it is difficult to see how the opt-in model will solve the problem of the many orphaned works (i.e., works still protected by copyright but whose authors are deceased and whose heirs or successors in interest are unknown) that Google wants to digitize: for orphaned works, there is nobody around to opt-in. One of the main reasons why Judge Chin did not approve the earlier settlement was the potential for Google to have a near monopoly over the millions of older, out-of print books that constitute a large portion of the orphaned works. So, even though, like the Jarndyce case in Bleak House, it has already been going on for seven years, the Authors Guild’s class action suit against will continue.