"The question presented is whether the (settlement) is fair, adequate, and reasonable. I conclude that it is not.” With those words in a ruling last month, a New York judge dealt a serious setback to Google’s efforts to create a private digital store of the world’s literary works.

Google’s long journey to the courthouse began in 2004 when the corporation started digitizing the collections of several major U.S. university libraries. The agreement with libra­ries has enabled Google to scan more than 12 million books since then, in large part without permission of authors and publishers across the world.

In 2005, the American Authors Guild and major U.S.-based publishers sued Google, claiming its scanning project constituted copyright infringement. Google’s defence was that because it intended to only make small portions of the books available for initial public viewing, the digitization was protected by the doctrine of fair use, the U.S. equivalent of Canadian fair dealing — the right to copy works without permission or payment in certain situations.

In October 2008, after extended discussions and before the trial started, the parties announced they had reached a settlement agreement that would allow Google’s ebooks plan to go ahead in exchange for, among other things, a cash payment to authors and publishers. The proposed settlement triggered hundreds of ob­jections and took a year to rework before a motion for final approval was filed in U.S. District Court in New York.

While Google, the Authors Guild and various commercial publishers were satisfied the arrangement was fair, hosts of individuals and organizations, including CAUT, were not. One of the main objections was that the plan would overwhelm other providers, including public institutions and rival corporations, and create a virtual monopoly for Google.

CAUT also outlined to the court in a written submission that the guild’s commercial motivations prevented it from adequately representing the public interest concerns of Canadian academic authors in the settlement discussions; that more broadly, the settlement wrongly included Cana­dians among the authors bound by it, overlooking important differences between Canadian and American copyright law; that the settlement ignored the distinctiveness of Québécois authors; and that the settlement lacked privacy guarantees against the surveillance of reading activities, a fundamental component of academic freedom.

In November 2009, District Court Judge Denny Chin had granted the settlement preliminary approval, but in a 48-page decision, released March 22, he rejected the settlement citing, among other issues, the many arguments of objectors, including CAUT.

“It’s a good decision, remarkable for its clarity and comprehensiveness,” said David Fewer, executive director of the advocacy group Ca­nadian Internet Policy and Public Interest Centre and CAUT counsel on the file. “Google, the guild and the publishers can try to appeal the ruling or come up with a new settlement, but right now their plan has received a very emphatic judicial No.”

According to Fewer, Google’s initial idea of creating a digital book collection in conjunction with university libraries was laudable and its mass digitization of library works arguably constituted fair use. But the problems began when the project morphed into a purely commercial venture at the insistence of the plaintiffs’ side.

“The settlement would have absolved Google for past acts of digitizing works and at the same time approved the future implementation of a book distribution scheme that negated many of the rights authors have to control the use and sale of their works,” Fewer said.

He also noted that the settlement’s treatment of orphan works — those books that have no clear owner — was “especially problematic.”

Orphan works include a vast amount of historical and cultural works in the collections of public sector organizations that are often very difficult for the academic community to find and study. The proposed settlement included a privatized regime to make such works available. In his judgment, Chin said the issue was better addressed by Congress, where orphan works legislation is currently pending.

“Digital technology has dramatically increased the accessibility of knowledge, but the private commercial collection envisaged by Google didn’t meet the requirements of the academic community and many others,” said CAUT executive director James Turk. “Judge Chin was correct in rejecting it.”