[Kali Yuga]

Originally Posted by Ninjalawyer

You can keep saying it's obvious (screaming or otherwise), but from a legal perspective, it is anything but.

Again: if Google was only doing search, it would be a big question about fair use.

Or: If the libraries were making archive copies for internal use, that would be acceptable.

But again: The settlement agreement explicitly grants Google the right to sell the scanned books. That clearly goes beyond anything that could conceivably be considered "fair use."

Originally Posted by Ninjalawyer

For orphaned works under the revised settlement agreement, any unclaimed funds are to be allocated proportionally to the United States....

That's nice.

But none of the parties involved have the legal jurisdiction or rights to modify US copyright law. As the DoJ and judge in the case recognize.

Originally Posted by Ninjalawyer

If the works truly are orphaned, is it wrong if no one lodges a complaint? Is it restricted if there's no law dealing with it, or implicitly permitted?

The law explicitly bars it. If you do not have the permission of the rights holder, and it's not in public domain, you can't distribute it. Period, finito, done.

The Author's Guild is not the rights holder for orphaned works, and is not authorized by those rights holders to negotiate, thus it cannot grant Google the right to distribute those works without their permission. That's one reason why the judge in the case suggested that opt-in would probably fix the settlement.

Originally Posted by ninjalawyer

I would also point out that the Department of Justice has itself acknowledged that a settlement agreement with a properly defined and adequately represented class of copyrightholders might be appropriate....

They said: "A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement."

The judge in the case also shot down the amended settlement last March, stating:

While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action which to was brought against defendant Google Inc. challenge its scanning of books and display of "snippets" for on-line searching - - to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case.

Seems pretty clear to me that Google has infringed copyright.