Photo associations too late to join Google books settlement

Last week a number of collaborating Photo associatons were denied the right to intervene in the class action against the Google books settlement that was initiated in 2005 by the Authors guild, publishing firms and a number of authors. The associations argued that Google’s scanning of large quantities of books requires compensation to not just the authors but also to photographers and want to intervene in the settlement, a request that had been denied earlier. The district court of New York has now denied the motion on all counts because the joint photo associations have submitted their request too late. Their concerns and interests can not be included in the case but a seperate case can still be made. The collaborating associations have issued their own statement and are now evaluating if an appeal will be made against the ruling.

The motion is called ‘untimely’ as the case has recieved a lot of media attention over the past four years, it was clear the organisations were not included and they had ample time to correct this and make a request earlier. They also argue that the case concerns millions of materials involving thousands of hours of discussion, compromise and legal draftsmanship that is at risk if the case opens up.

Finally they say intervention at the final hour could destroy the settlement and send the parties back to the drawingboard. It also puts some questionmarks with the organisations’ motive to try to join the existing case saying  that it seems they are simply trying to get a better deal in comparison to starting a seperate case.

On the one positive side any agreement with Google will not be binding for photography and the associatons are free to initiate their own litigation (but the organisations argued that this would be too difficult).

The request was made by the American Society of Media Photographers (ASMP), The Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association and a number of photographers.

The reaction that has since been issued by the ASMP:

On November 4, 2009, the U.S. District Court for the Southern District of New York issued a ruling on a motion for reconsideration of the Court’s earlier decision in the case of Authors Guild et al. v. Google, Inc. The effect of the decision is to exclude photographers and other creators of visual materials from participating in the settlement of the case, despite the fact that they had been part of the plaintiff class for over two years.

The American Society of Media Photographers (ASMP) believes that the Court’s decision missed the basic truth that a settlement that excludes photographic and other visual materials is neither fair nor in the public interest. If allowing photographers and other visual artists to intervene would, as the Court stated, “put the entire settlement at risk,” it is because, in ASMP’s view, the settlement is fundamentally flawed and should not be approved by the Court.

ASMP regrets that the Court did not recognize this unfairness and, instead, opted to deprive the visual arts community of the opportunity to participate in crafting a settlement that would have given the public access to complete books instead of textual materials only.

 ASMP, together with several of its prominent members and joined by the Graphic Artists Guild, the Picture Archive Council of America, and the North American Nature Photography Association, had earlier filed objections to the recently withdrawn proposed settlement of the class action litigation brought by the Authors’ Guild against Google arising out of its unauthorized copying of millions of copyrighted books.

As ASMP pointed out, photographers and other visual artists would be entirely excluded from the proposed settlement, even though they were included in the class of plaintiffs during much of the litigation and should have had their interests represented during the settlement negotiations. ASMP further objected that photographers and other visual artists would be adversely impacted by approval of an unprecedented settlement that would have a chilling effect on the rights of small copyright owners to obtain fair value for their copyrighted works.

 Because the legal standing of creators of visual works in the litigation was unclear, ASMP also formally asked the U.S. District Court for the Southern District of New York for permission to intervene in the class action litigation filed by the Authors’ Guild against Google. Following the Court’s denial of that motion, ASMP filed a motion for reconsideration. It argued that photographers and visual artists should not have been excluded from the settlement despite having been part of the plaintiff class for more than two years. The Court has instructed the parties to the litigation, namely the authors, publishers and Google, to submit a revised settlement proposal to the Court for its consideration by November 9, 2009.

ASMP and its sister organizations are currently evaluating their options and will make a decision in the near future whether or not to appeal the Court’s ruling.

Update:

Google Gets Till Friday for Digital Library Settlement | Epicenter | Wired.com
Wired.com | November 10, 2009
Quote: Google and a coalition of authors and publishers now have until Friday to submit a new plan on how to drain the swamp of copyright law to let Google build the digital library of the future. A federal court judge granted the extension for the Google Books settlement Monday after the parties told the court a new settlement was being worked out in consultation with Justice Department attorneys, who were briefed on Friday

Picture: Stock Exchange | Football | Quentin-Houyoux