Tuesday, September 22, 2009

Justice Dept. Weighs in on Google Book Settlement

The Chronicle of Higher Education alerts us that the Department of Justice issued a statement of interest about the Google Book Settlement last Friday, Sept. 18, 2009. The link takes you to the PDF of the full text post of the document as submitted to the Court. Among other nits, the DOJ comments:

* The Parties Have Not Demonstrated that the Class Representatives Adequately Represent Absent Class Members

* The Proposed Settlement May Be Inconsistent with Antitrust Law

However, the Department of Justice is not entirely inimical to the Settlement:

The United States strongly supports a vibrant marketplace for the electronic distribution of copyrighted works, including in-print, out-of-print, and so-called “orphan” works. The Proposed Settlement has the potential to breathe life into millions of works that are now effectively off limits to the public. By allowing users to search the text of millions of books at no cost, the Proposed Settlement would open the door to new research opportunities. Users with print disabilities would also benefit from the accessibility elements of the Proposed Settlement, and, if the Proposed Settlement were approved, full text access to tens of millions of books would be provided through institutional subscriptions. Finally, the creation of an independent, transparently-operated Book Rights Registry (the “Registry”) that would serve to clarify the copyright status and copyright ownership of out-of-print works would be a welcome development.

Nonetheless, the breadth of the Proposed Settlement – especially the forward-looking business arrangements it seeks to create – raises significant legal concerns. As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. 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. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.
FRCP 23 is the rule governing class actions. It's set up to try to ensure that when a class of plaintiffs with aligned interests settles a class action that will affect absent class members, whose interests may not line up, those interests will still be represented fairly. The DOJ sees problems both with the opt-out nature of the coverage of "absent" authors and with the adequacy of notice to the huge number of affected parties. This is particularly true when you consider the holders of copyrights for out-of-print works (who may not even be aware of their ownership), and foreign rights holders. The open-ended nature of the future exploitation of the works, without any specific rights being named -- very "amorphous and malleable" in the words of the DOJ statement, and very troubling as to the nature of the rights being transferred by an entire class. Yet, the Statement also says it hopes the parties do not lose their momentum, and strongly supports some resolution that will ultimately make the availability of the material possible.

This is very much like the messages I heard at the Boston Public Library convocation on the Google Book Settlement. The librarians also felt that the availability of the material, the accessibility to handicapped readers, the ability to research from remote areas were all strong pluses in favor of the Google Book Project. But the possibility of abuse and mis-use built into the business model was very troubling. It would be a good solution if the Settlement were to address the problems. It is really too sad that policy-making bodies or a consortium of libraries did not deal with this earlier.

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