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Book Ruling Cuts Options for Google

SAN FRANCISCO — Now that a judge has curtailed Google’s ambitions to create a giant digital bookstore and library, the company is left with few appealing options.

Google and groups representing publishers and authors were assessing their options Wednesday, trying to figure out whether they would remain allies or become enemies again.

The two sides seemed unlikely to agree on a new settlement. Their original settlement, which would have let Google scan and make available every book ever published, was rejected by a federal judge Tuesday, the latest twist in a seven-year legal process.

Instead, Google may take the battle from the courtroom to Congress, to promote a law that would make orphan works — books that are still under copyright but whose author or copyright owner can’t be found — widely available.

“The publishers have said, ‘We want to settle,’ but Google’s motivation to settle is quite a bit lower,” said Pamela Samuelson, an expert in digital copyright law at the University of California, Berkeley, who has opposed the settlement. Still, she said, Google, which has already scanned 15 million books, is unlikely to give up. “The next thing to do is think about going to Congress and getting legislation that would make particularly orphan works available to the public,” she said.

Aside from appealing the decision of the judge, Denny Chin, publishers and authors have several choices. They could drop or revive their original copyright lawsuit against Google, which claimed that even Google’s more modest initial plan to scan books and show snippets of their text was illegal. Those issues have never been litigated.

Dropping the suit seems unlikely given the amount of money and time the publishers have already invested in the fight, said people briefed on the negotiations but who were not authorized to discuss them publicly because they were confidential. Several analysts said the publishers would like to avoid going to court.

Another option, which publishers and authors said Wednesday was attractive to them, would be to reach a new settlement with Google that requires each author or copyright owner to opt in and permit Google to digitize their works. Judge Chin said that many of his concerns would be ameliorated if the parties came to this agreement.

“We’d love to sit down with our negotiating partners and arrive at a very quick solution,” said Scott Turow, president of the Authors Guild, which was a party to the original settlement. “But given the complexity of this, the Cubs might win the World Series before this is resolved.”

Google, which declined to discuss the case on Wednesday, has called the opt-in solution unworkable. Google would not be interested in such an agreement because it already allows publishers to join with Google to show more of their digitized works, and the point of the original settlement was to automatically opt in vast quantities of books, said people briefed on the settlement who were not authorized to speak publicly about it.

The settlement also would have given Google exclusive access to millions of orphan works. By agreeing to an opt-in arrangement, Google would lose those books because there are no clear copyright owners to opt in.

Scholars estimate that half of all books may be orphans. These range from privately published autobiographies to books that are vital for academics and researchers and are stored in university libraries.

Congress has twice considered legislation to address orphan works, spurred on by a 2006 report by the United States Copyright Office that recommended free use of orphan works if there had been a diligent search for the owner. But the legislation was stymied because policy makers were waiting for the outcome of the Google Books settlement, Professor Samuelson said.

Judge Chin pointed to such efforts in his ruling, saying that “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this court.”

Advocates of open access to orphan works cheered the rejection of the settlement, saying it could pave the way for legislation that would let anyone — not just Google — use the books..

“If Congress can wake up to the importance of this issue, there’s a good chance they will pass orphan books legislation, and they will do so in the interest of the general public, not favoring any enterprise,” said Robert Darnton, director of the Harvard University Library, who is helping to lead a project to create a nonprofit digital library.

Google has endorsed such legislation in the past, and people briefed on the negotiations said they expected Google to now aggressively pursue it in Congress.

That might be the only thing all sides agree on, said Hadrian R. Katz, a lawyer who argued against Google on behalf of his client, the Internet Archive. “I think there’d be a renewed effort to get that kind of legislation, which would probably be in everybody’s interest,” he said.

Julie Bosman contributed reporting from New York.

A version of this article appears in print on  , Section B, Page 1 of the New York edition with the headline: Book Ruling Cuts Options For Google. Order Reprints | Today’s Paper | Subscribe

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