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Google Books and ‘Freelance’ decisions still pending

Another deadline for the parties in the Google Books settlement has passed without result, leaving Google languishing on the bench with ‘Freelance’ (Reed Elsevier v Muchnick) in the US battle over ‘opt-in vs opt-out’ copyright arrangements for authors and publishers.


Those eagerly awaiting the outcome of the Google Book Settlement will have to wait a little longer. July 19th was the scheduled date for representatives of Google, authors and publishers to announce their revised agreement in the long-running negotiations over the Google Books project.


The parties had agreed to develop a revised settlement rather than pursue further litigation after the US District Court decided against the proposed settlement earlier in 2011. A key component of the rejected settlement was that the Google Books Service would be an ‘opt-out’ rather than ‘opt-in’ service, in which works protected by copyright could be scanned and dealt with by Google unless the copyright owner specifically opted out of the program. This was a reversal of established copyright practice, in which permission is sought from the creator prior to copying.


Whilst the parties appeared in court on July 19th 2011, the revisions to the settlement did not. Both sides requested more time and presiding judge Denny Chin granted an extension until September 15th 2011.


Meanwhile a second high-profile litigation, Reed Elsevier v Muchnick (known as the “Freelance” case), is also wrestling over a proposed settlement that would require writers to ‘opt-out’ rather than ‘opt-in’. Reed Elsevier v Muchnick concerns the objection of a number of writers to a proposed settlement between publishers, author groups and database providers that would allow database providers to use freelance-created content without the direct permission of the writers, in exchange for a multi-tiered system of payment to the writers. The amount of the payment would be determined by factors such as whether or not the material copied was registered with the US Copyright Office.


This proposed settlement sprang from a 2001 US Supreme Court decision in favour of freelance authors in New York Times Co. v Tasini, which concerned the reproduction of online content created by freelancer writers for newspapers, magazines and journals, which had not been licensed for further electronic use.


The settlement was initially approved by the US District Court but subsequently challenged by a group of authors on several grounds, one of which was the ‘opt-out’ nature of the settlement and another, the perceived unfair treatment of unregistered works compared to registered works. The matter was heard in the US Second Circuit Court of Appeal, which reversed the District Court's prior approval of the settlement, effectively halting it. The matter then went to the US Supreme Court and, in March 2010, back to the Second Circuit Court of Appeal, which has yet to make a final decision.


Both settlements provide an interesting insight into some of the complexities of implementing distribution models for digitised content. Unfortunately for those awaiting a definitive outcome, legal limbo continues.