The question presented is whether the ASA is fair, adequate, and reasonable. I conclude that it is not.
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 was brought against defendant Google Inc. (“Google”) to 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.
Accordingly, and for the reasons more fully discussed below, the motion for final approval of the ASA is denied. The accompanying motion for attorneys’ fees and costs is denied, without prejudice.
United States Circuit Judge
Sitting By Designation
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE AUTHORS GUILD et al.,
– against – OPINION
05 Civ. 8136 (DC)
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