Twelve million scanned books and six years after Google was sued for digitizing entire libraries of books without authorization, in late March 2011 Federal District Judge Denny Chin rejected a controversial settlement of the class action suit. Authors Guild v. Google Inc., 05 Civ. 8136 (Opinion, March 22, 2011).

The lawsuit by authors and publishers challenges Google’s claim that the copying for the purpose of allowing the display of “snippets” in response to online searches represented fair use. The Court concluded that the forward-looking part of the settlement – which established an elaborate struc-ture and institutions for the use and exploitation of online books, especially orphaned works – “exceeds what the Court may permit under Rule 23” governing class actions. The 48-page decision discussed myriad issues, and it may be useful to distinguish what Judge Chin actually decided from the many points as to which he expressed concern.

Overriding all issues was the Court’s belief that “questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agree ment among private, self-interested parties.” The Court specically held...