Judge orders Google, publishers to start over on Books settlement

In the wake of a Dept. of Justice Statement of Interest last month questioning whether Google had the right to negotiate a settlement deal on behalf of publishers that aren't direct parties to the deal -- and that may not even exist anymore -- the federal judge overseeing the case, Judge Denny Chin, ordered Google and publishers' groups to draft a completely revised settlement proposal by November 9.

At issue now is that several of the groups on whose behalf Google was claiming to be acting, actually do exist; and a number of them filed objections to the settlement, most recently on September 22, asking why they weren't made direct participants. Last September 2, Judge Chin ruled that groups representing photographers whose scanned works would be made public through Google Books, were too late in making their objections heard.

"This case was filed some four years ago and has been conditionally settled," Judge Chin wrote at the time. "It is simply too late to permit new parties in the case." But these groups, led by the American Society of Media Photographers, won't take no for an answer. Yesterday, they filed their Notice of Appeal to the Second Circuit.

While Google had apparently thought about the interests of authors of printed textual material -- albeit late -- the interests of photographers whose work may be scanned in as well, perhaps did not factor in as highly as they should.
Sources inside the courtroom yesterday, including from Judge Chin's alma mater, quote the judge as giving credence to objections to the proposed settlement -- objections which may include from the Justice Dept. as well as the photographers' groups. "Clearly, fair concerns have been raised," Princeton University quotes the judge as saying.

It's unknown if Judge Chin is a reader of Wired; if he is, he might have seen a timely article yesterday by Kevin Poulsen. That article noted how Google's last attempt to save history, through the 2001 purchase of Deja.com and its Internet archive, the Google Groups record of the early Usenet has sat largely untouched, with "beta" features still under development after having literally been announced in 2004.

It would have been an article like that which caused Judge Chin to make the curious comment noted by Princeton this morning, in which he said he wasn't sure Google Books would offer society ample benefits.

Whether Judge Chin will be the presiding judge in the District Court case on November 9 now depends on whether his transfer comes through. On Monday, President Obama announced Chin was his nominee for elevation to the Second Circuit Court of Appeals. If he is confirmed, ironically, he may have to recuse himself from hearing the photographers' groups' appeal to that very court.

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