The Authors Guild announced today that it had filed a lawsuit against the HathiTrust and five of its members, including the Universities of Michigan and California. The suit challenges the libraries’ use of the scans they have received from Google:

The universities obtained from Google unauthorized scans of an estimated 7 million copyright-protected books, the rights to which are held by authors in dozens of countries. The universities have pooled the unauthorized files in a repository organized by the University of Michigan called HathiTrust. In June, Michigan announced plans to permit unlimited downloads by its students and faculty members of copyright-protected works it deems “orphans” according to rules the school has established. Other universities joined in Michigan’s project in August.

The first set of so-called orphans, 27 works by French, Russian, and American authors, are scheduled to be released to an estimated 250,000 students and faculty members on October 13th. An additional 140 books, including works in Spanish, Yiddish, French, and Russian, are to be released starting in November.

The complaint seeks a declaration that the scanning and display of the works is illegal, and an injunction requiring the universities to stop.

Four more universities have joined the orphan works effort spearheaded by the University of Michigan; they will make books identified as orphans available digitally to their own students, faculty, and affiliates.

Meanwhile, in France, the publisher La Martinière joined Hachette Livre in cutting a voluntary deal with Google for the scanning and sale of its books.

The Second Circuit issued a decision today in another copyright class-action settlement case with the ungainly caption of In re: Literary Works in Electronic Databases Copyright Litigation. The opinion rejected the settlement there because the class contained members with strongly diverging interests, depending on the strength of their copyright claims against the defendants. The court held that different groups of plaintiffs who had registered their works at different times needed separate lawyers. C.E. Petit of Scrivener’s Error believes that this bodes ill for the Google Books settlement, and I concur.

What do Wal-Mart and Google Books have in common, beyond their immensity? This is the question raised by a new letter sent to the court by Robert Kunstadt and Ilaria Maggioni, who direct the court’s attention to the recent Supreme Court decision in Wal-Mart v. Dukes, which rejected a class of female employees of Wal-Mart. Because the employees were challenging Wal-Mart’s policy not to have a uniform policy on promotion decisions, the Court held, their claims weren’t sufficiently “common” to support a class action. Kunstadt and Maggioni argue that the class in Google Books is similar: not even suitable for litigation because the fair use issues affecting each author and book will be too dissimilar to be resolved in a single suit.

At the July 19 status conference, the parties said that they were negotiating towards an “opt-in” settlement. Judge Chin gave them an additional extension, until but suggested that if they did not report an agrement in principle by then, he would put the case on a fast pace towards trial. The next status conference will be September 15, at 11:00 AM.

The University of Michigan has been studying which of the digitized books it holds are orphans. That project is described here, including the workflow process:

Note that two different people follow the same workflow for each volume, which is a built-in protection against making errors. We attempt to make contact with the potential copyright holder via two (and sometimes three) different ways. If we make contact with a potential rights holder and they assert that they are still in fact the rights holder for the work, it is not an orphan. If we can not make contact with a potential rights holder or the potential rights holder does not assert that she holds the rights, then only at that time do we consider the work an orphan.

Of special note is the fact that a list of potential orphans will be made available for 90 days before they are opened. If, at any time, a legitimate copyright holder approaches us we will remove their work from our pool of potential orphans (as it is no longer an orphan). In addition, if at any time after a work has been identified as an orphan and made readable to the U-M scholarly community a legitimate copyright holder approaches us, we will remove the copyright holder’s work from the program.

Now, for those books that have passed through this process and been categorized as “orphan,” the University library will make them available to University users and campus visitors:

Access to orphan works will be limited to U-M authenticated users and visitors to the campus libraries in Ann Arbor, and to works that the library holds in its print collection. In other words, the same population that can check out these works from the library’s print collection now will be able to read the digital copies from other locations.

According to John Wilkin, associate university librarian and executive director of HathiTrust, other institutions among the HathiTrust’s more than 50 partners, including the University of Wisconsin, are moving forward with similar plans to share digitized orphan works from their own collections.

The CPI Antitrust Chronicle has a new issue mostly devoted to the Google Books decision. Although the full text of the six articles is only available to subscribers, here are the titles and abstracts:

Timothy Brennan, Revise or Start Anew? Pondering the Google Books Rejection

Why the objectors to Google in the settlement need not be on the side of competition.

Isabel Davies and Holly Strube, Online Distribution of Copyright Works: Judge Chin Rejects Google Books Settlement

Multinational co-operation will not be easily achieved, but this process must begin without delay.

Gina Durham, The Google Book Settlement & the Uncertain Future of Copyright

The rejection of the Amended Settlement for the Google Book Project underscores the frustrated dichotomy between old laws and new media.

Ian Forrester, Google Books: Game and Set to the Sceptics; the Match Continues

The judgment is interesting, easy to read, rich in the voices of ordinary people, and very severe.

Mark Giangrande, The Rejection of the Amended Google Book Settlement Agreement: A Librarian’s Perspective

The point that often seems secondary, the actual content of the scanned books, is, from a librarian’s perspective, very important.

Randal Picker, After Google Book Search: Rebooting the Digital Library

We should want the ecosystem containing digital libraries to be rich and teeming.

Professor Samuelson has written prolifically about the settlement and its significance for larger debates about the copyright system. Her new guest post for the Center for Democracy and Technology, Overcoming Copyright Obstacles in a Post-Google Book Settlement World, provides an overview of the state of affairs after Judge Chin’s opinion, including a short and succinct version of the arguments she develops at length in her forthcoming article Legislative Alternatives to the Google Book Settlement. Here is her conclusion:

Many, even if not all, of the social benefits that would have flowed from approval of the GBS settlement can be achieved in other ways. Some reforms can perhaps be done through private ordering (e.g., professors making their books available on an open access basis), some through fair use (e.g., scanning to index contents), and some through legislation. We should not let the failure of the GBS settlement stand in the way of finding new ways to make cultural heritage more widely available.

Google has integrated Google Books into its other affiliate advertising programs. Here is the official blog post announcement.

George Washington University Law School will hold a roundtable on June 15 with the provocative title. “Can the Google Book Settlement Be Fixed?: A Roundtable Discussion Among Experts”:

This conference will explore what options are available to the parties that would retain the principal benefits of the rejected deal, but might satisfy the judge and some of the objectors. After an initial presentation of options, a moderator will pose questions to the discussants, who are experts in the three main areas where the judge identified problems: copyright, class actions, and antitrust.

The event is free, but reservations are required.