Judge Chin's rejection has three main underpinnings. First, the settlement would address novel copyright concerns that are better left to Congress, especially since those concerns extend to stakeholders who are not covered by U.S. law. Second, the settlement would create a new right for Google (the right to publish entire so-called "orphaned" works) that the original lawsuit simply did not cover and that therefore fall outside the scope of what the court could legitimately approve.
Finally, the settlement would upend long-established practice by requiring copyright holders to opt out of the proposed scheme rather than opting into it. As Judge Chin opined:
... it is incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission.This, to my mind, is the most important point made in the decision because it goes to the heart of what I hate about so many firms' online practices: they would rather beg forgiveness rather than seek permission. Indeed, most such firms don't even worry about begging forgiveness.
Whether it's Wal-Mart (which apparently added my email address to its database without asking me), or Angie's List, or Google itself with its privacy-invasive Buzz rollout, we're seeing what the market does if it is allowed to follow its own instincts. It doesn't ask permission before it exploits us.
Good for you, Judge Chin.
And Google, are you ever going to learn to ask before you do?
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