It had been a win for both sides of the massive copyright infringement suit. The proposed class action settlement gave the plaintiffs—the Authors Guild and a group of large book publishers—$45 million upfront and a lucrative new source of revenue. It gave the defendant, Google, permission to create the world’s greatest library—an online database containing the vast majority of English-language books. This promised not only to be a terrific resource for the public, but also very profitable for Google. Moreover, the settlement offered an innovative solution to one of the knottiest problems in copyright law: what to do with a work when it is difficult or impossible to determine who currently owns the work’s copyright. These “orphan works” cannot be reprinted, adapted or otherwise fully used for society’s benefit because such use could constitute infringement. But preventing such use often provides no benefit to the copyright owners.
Congress tried twice in recent years to pass legislation resolving this problem. The orphan works bills would have created safe harbors, allowing anyone to use orphan works without committing copyright infringement. Both bills died in the House.
Judge Chin thought otherwise. He ruled that the opt-out requirement, which was at the heart of the proposed settlement, violates copyright law.