For several years, Google has been working to scan millions of printed books and make them widely available in an epic, digital library.   This ambitious undertaking hit a setback this week when the US Court of Appeals rejected ‘the deal’ that Google negotiated with authors and publishers to actualize this plan.   A critical issue in the court’s rejection was that the agreement reached with authors and publishers was an ‘opt-out’ vs. an ‘opt-in’ deal.  This means that folks would have to proactively ‘opt-out’ of being included in Google’s digital library, rather than ‘opting-in’ to the library.  This decision is in line with standard licensing deals and contracts, where a signature (which is an official ‘opt-in’) is required to enter a binding agreement regarding the use of copyrighted works.

Why is Google pushing for the ‘opt-out’ deal instead of the ‘opt-in’?  For the obvious reason that more books will be included in the digital library if the automatic default is inclusion.  Additionally, an ‘opt-out’ deal would automatically include millions of books that are currently under copyright protection, but whose authors are unknown or can’t be found (these types of works are known as ‘orphan works’).

What will happen next?  It is possible that a substantially revised agreement could keep this ambitious digital project moving forward.  However, for now, the deal has been rejected for several reasons… including violation of copyright and antitrust laws.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com