Tuesday, 26 May 2009 18:16

WHEN IS A SETTLEMENT AGREEMENT MORE THAN JUST A SETTLEMENT AGREEMENT? GOOGLE IT.

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    In 2005, a class action lawsuit was filed by the Author’s Guild against Google Book Service which alleged that Google had violated copyright law by digitizing millions of works without the consent of the authors. In late 2008, Google turned the class action lawsuit on its head by announcing that it reached a settlement with several major publishers which would end the copyright lawsuit. The settlement agreement takes the class action paradigm to the next level by potentially creating a licensing agreement between Google and individual copyright holders of all works published before January 5, 2009. The settlement, in so doing, also gives Google exclusive rights to orphaned works, which are out of print works whose authors cannot be found. The settlement of this case has far reaching consequences because pursuant to the settlement agreement, copyright owners, irrespective of whether their works were digitized, can opt-in to the settlement agreement.  Nevertheless, the settlement agreement was fast tracked with an initial deadline for opting-in of May 5, 2008. However, given the potential breath of the settlement agreement a group of authors requested an extension. The Court granted a four month extension so the new deadline to opt in is nowSeptember 4, 2009. 
        The agreement, available at  http://books.google.com/booksrightsholders/agreement-contents.html, is well crafted to entice the individual copyright owner with the promise of exposure and royalties, and suggests that the original authors will retain their rights to sell the print versions of their works. While it may be a good idea for certain individual copyright owners longing for greater exposure or for authors of out of print materials who are currently not receiving any royalties for their works, the long term effects of the agreement strike at the core of author’s rights. This is because the monopoly over works created by copyright protection was intended to safeguard authors, and thereby, foster future works. This proposed settlement, however, could take this individual monopoly to a new level and in so doing create a licensing monopoly on copyrighted works. Its supporters maintain that the settlement will provide centralized digitized access to copyrighted works which will not compete with modern publishing. Nevertheless, Reuters, the Wall Street Journal and the New York Times recently reported that the Justice Department has begun an antitrust inquiry into the long term implications of the settlement agreement.  The Justice Department has not confirmed the same. 
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