Federal Judge Rejects Google Settlement. Should Photographers Care?

In a word, Yes.

The federal court judge who rejected the proposed settlement agreement between Google and a consortium of authors and publishers on Tuesday said the agreement was not “fair, adequate or reasonable.” The losers would have been many copyright holders whose works Google wants to vacuum up in a massive project to digitize millions of library books and periodicals, and Google competitors who objected to a plan that would have given Google a monopoly over so-called orphan works. The decision has put the Google library project on hold for now.

Authors and publishers sued the search engine company in 2005 for copyright infringement after it began digitizing library books without permission. Google’s original plan was to make “snippets” of the books available to users of its search engine. The proposed settlement would have allowed the company to do much more: distribute the entire contents of the books, and collect licensing fees. Google planned to set up a registry to disburse a share of the fees to authors and publishers.

A primary problem with the plan, the judge said, was that it would have required authors to opt out of the registry, rather than opt in. Copyright law is opt in: publishers have to get permission from authors before exploiting their works, rather than exploit the works first and then stop only if a copyright holder asks them to. Had the agreement been approved by the court, Google would have effectively been granted a big, fat exception to copyright law.

While the decision affects authors primarily, it also has important implications for photographers and other artists. ASMP, PACA, PP of A, other trade groups representing photographers and artists, and a number of individual photographers have sued Google (separately from authors and publishers) to prevent the company from digitizing and distributing their works from library books and magazines without permission.

“The decision in the text authors’ and publishers’ case is certainly of great interest to us, but it does not have an immediate legal effect on our case,” says ASMP general counsel Victor Perlman. If photographers and artists enter any settlement talks with Google, he adds, “the decision in the authors’ case provides a definite roadmap” for the terms of any settlement with photographers and other artists.

Perlman won’t comment further about the court’s decision to reject Google’s proposed settlement with authors and publishers. But it is obvious from reading the ruling that a federal court declined to give a single corporate special rights under copyright law at the expense of copyright holders. And that isn’t a bad thing for photographers.

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