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Google Says It Can Scan, Display Books Even If Authors Opt Out of Class Action Settlement

Last Friday was the deadline for writers to opt out of the class action suit brought by publishers and authors over Google (GOOG) Books. But there is a big assumption many authors and publishers are making that is apparently false. They think that opting out of the lawsuit settlement means that Google cannot scan or display the books or magazines containing their work. However, the search and advertising giant begs to differ.

I came across this tidbit while researching whether titles on display at Google Books were really safe from unwanted downloading. A quick check showed that page images can still be saved, and that there are software packages that will scan all of a book that Google displays. The argument is that because only a portion of pages are on display, that is still sufficient to protect a work and that people who need or want the entire volume will have to purchase it.

This and other aspects of the settlement have made many writers wary, sending them to opt out of the settlement. (Disclosure: I'm a book author and have opted out.) But according to Google, that only means opting out of the payment scheme and preserving the ability to directly sue the company. The company says that it can still freely scan and even display anything if it wishes.

If you go to the opt out page of the settlement agreement and then click the link for the definition of "opt out", you get the following:

If you checked the box on the Opt Out form requesting that Google not digitize books that you identified the Settlement Administrator will pass along your request to Google. Although Google has no obligation under the settlement to comply with such request, Google has advised the Settlement Administrator that its current policy is to voluntarily honor such requests and refrain from digitizing your books or, if they have already been digitized, refrain from displaying them. By opting out, you are not participating in the settlement, and are retaining all rights against Google and the Participating Libraries.
In other words, according to the settlement site, which is the official explanation of the settlement for affected authors and publishers, all that opting out does is preserve the right to independently sue Google and the libraries that have cooperated with it in scanning books, many of which may be out of print but still under copyright protection. To put it differently, Google is still insisting that it has a right to do as it has been doing. Unlike most class action settlements, in which a company agrees to pay a certain group of people for alleged past injuries, even if the company insists that it did nothing wrong, this book settlement is more like a legally-enforced business plan for an ongoing electronic publishing venture. How much of a future would it have if Google didn't have the right to use the written material on which it had to depend? Even if the company's current policy is to honor author requests not to display books, it hasn't said that it will never reconsider its policies.

Currently the courts have been looking at a second version of the settlement after the first one received heavy criticism, especially from the Department of Justice. But from what I hear through the grapevine, the DOJ may be ready to let this one move into adoption. That sets up an interesting dynamic, with Google potential in conflict with such competitors as Amazon, Microsoft, Barnes & Noble, and Apple, and the chance of an appeal, possibly funded by any or all of these companies, significant.

Image via stock.xchng user nkzs, site standard license.