Tuesday, March 22, 2011

What's next for "Google's" Book Rights Registry?

Judge Denny Chin's order came down today; he decided NOT to approve the "Amended Settlement Agreement" (ASA) that would have ended the lawsuit between Google, the Authors Guild, and the AAP.  (The decision is only 48 pages, shorter than Chin's senior thesis.) What happens next?

There is speculation that the rejection will be appealed; apparently, Chin must give his permission for an appeal to proceed. (update: or maybe not). Another possibility is that the parties will go back and try to renegotiate a new settlement along the lines suggested by Judge Chin.
In the end, I conclude that the ASA is not adequate, fair, and reasonable. As the United States and other objectors have noted, 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. (See, e.q., DOJ SO1 23, ECF No. 922; Internet Archive Mem. 10, ECF No. 811). I urge the parties to consider revising the ASA accordingly.
I'm guessing, based on Judge Chin's fairly broad and terse rejection of the settlement's key terms, that a settlement will have to start at square one; even given the AAP statement:
While the March 22 decision of U.S. District Court Judge Denny Chin on the Google Book Settlement Agreement that was filed on November 13, 2009 is not the final approval we were hoping for, it provides clear guidance to all parties as to what modifications are necessary for its approval. The publisher plaintiffs are prepared to enter into a narrower Settlement along those lines to take advantage of its groundbreaking opportunities. We hope the other parties will do so as well.
One provision of the settlement that has had broad support, even from opponents of the agreement, is the Book Rights Registry. This is essentially a huge database of rights information that has been accumulated by the plaintiff's attorneys. While it's often referred to as "Google's Book Rights Registry", and it was set up with assistance from Google, it doesn't belong to Google at all.

Michael Healy, the "Executive Director Designate" of the Book Rights Registry, as been working on the registry for almost two years, writing specifications, answering inquiries from confused rights-holders, and waiting for a decision from the court before he can proceed to make it a functioning entity. What will become of this almost-there resource, now that the settlement has been rejected?

Here's one possibility: the plaintiffs could establish a book rights registry with or without Google.

Clearly, the plaintiffs and their attorneys have run up a huge legal bill for this lawsuit. They've been expecting an infusion of $34.5 million to set up the registry and another $30 million for attorney's fees. It's not clear how much has been spent on the registry so far, but it has registered claims for about 1.1 million books. This is potentially a very valuable resource, which, if put into play could greatly increase the possibilities for transactions of book rights.

One possibility is that as part of a side deal, the plaintiffs together with Google arrange to put the registry into operation, presumably with some cash from Google. I do not know if such an arrangement would be legal.  Another possibility is that the database is offered to investors who would set up a rights clearance business. The cash from the sale could help the plaintiffs continue the suit.

The opposite possibility is depressing, but not unlikely. The entanglement of the rights information with Google's proprietary information could be so deep that a functional Book Rights Registry would have to be started from scratch, and the ebook industry is locked into a continuing effort at cleaning up the rights mess.

  1. Follow all the Settlement news at The Public Index.
  2. Although Gluejar's effort to unglue ebooks will be hampered by the absence of a Book Rights Registry, there will be an even greater need for efforts such as ours that offer a path to increased access to books.
  3. James Grimmelmann's summary of the decision is required reading.
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