Opting Out, Opting In - Google Books Settlement Update

Last week, a hearing was held in the Southern District of New York by Judge Chin for an update on progress on settlement in the Google Book Settlement.

However, there has been no progress. Previously, the judge had indicated that the settlement may clear antitrust hurdles if the default provision was that authors had to opt-in to the settlement to agree to make their works available through Google Books. This will also allow for snippets of the work available through a search mechanism on Google.

An attorney from Google indicated that there were business issues in addition to legal issues that were still being worked out.

Previously, the Court indicated that it was doubtful that a settlement would be reached. Id. Google does not have much interest in the opt-in provision. Id.

Without a settlement, the judge will likely have to decide whether the use of the snippets from books are a fair use for which Google can provide to users or whether these may be infringements of the literary works. Is it possible that this is what Google actually seeks?

Rather than pay a hefty settlement sum for an opt-in option that is not as attractive to Google, it may merely wait to see if its use of the published materials from authors is a fair use – for which Google may have to pay nothing at all.

The parties have until September 15, 2011 before the next report is due to the judge.

IVI Preliminary Injunction

Back in November I blogged about the Fox/Cablevision dispute and discussed Fox claiming contributory copyright infringement when Cablevision customer service representatives allegedly told their custombers that the blacked out Fox broadcasts were available to watch through ivi.

In September 2010, prior to the Cablevision dispute, Fox and a number of other major broadcasters filed suit against ivi claiming copyright infringement in the Southern District of New York. As it turned out, ivi had begun offering local network television broadcasts in major cities (Chicago, Los Angeles, and New York) over the internet for a fee.

The Court issued a preliminary injunction last month to have ivi cease streaming television broadcasts over the internet. A complete text of the ruling can be found here via Public Knowledge.

Ivi claimed that it was a cable service, and thus was only required to pay a compulsory license; however, it did not obtain consent from broadcasters as required of other cable services. The FCC has not considered ivi a cable service nor did the judge.

Ivi has indicated that it is considering an appeal of the decision to the Second Circuit.