In general, the project is a "good thing" -
Breathing life into millions of works that are now effectively dormant, allowing users to search the text of millions of books at no cost, creating a rights registry, and enhancing the accessibility of such works for the disabled and others are all worthy objectives.
However, the settlement goes beyond the original dispute, and is trying to use class action to create a new market that is unrelated to the copyright-related lawsuit -
Although the United States believes the parties have approached this effort in good faith and the ASA is more circumscribed in its sweep than the original Proposed Settlement, the ASA suffers from the same core problem as the original agreement: it is an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation. As a consequence, the ASA purports to grant legal rights that are difficult to square with the core principle of the Copyright Act that copyright owners generally control whether and how to exploit their works during the term of copyright. Those rights, in turn, confer significant and possibly anticompetitive advantages on a single entity – Google.
Not only that, but the DOJ seems to lend some weight to the "fair use" defense originally claimed by Google (and by the participating libraries) -
There has not been – and simply could not be – any allegation in this litigation that Google has sold full access to works for which it lacks the right to do so, or even that such activity was threatened. Indeed, selling such access would have been legally indefensible, and thus would have been at odds with Google’s entire pre-settlement book search strategy, which was premised upon staying within colorable “fair use” grounds. With very good reason, therefore, Google consciously avoided creating precisely the factual predicate that might support the settlement of book- and
subscription-selling claims. The business models that the ASA authorizes therefore relate to activities in which Google never engaged or threatened to engage, and thus claims of copyright infringement that could not have been brought.
The anti-trust issues brought up by the suit are unchanged in this amended settlement agreement. This leaves the judge in an even tougher spot than he seemed to be in before: if he decides that the suit is a valid class-action then he has to address the anti-trust issues. However, I have seen no clear description anywhere of how those could be addressed, so the judge is being asked to be very clever indeed -
Finally, the United States recognizes that if, as discussed supra, class representatives lack the power under Rule 23 to grant Google the power to exploit broadly the digital rights of class members to sell books, create subscription libraries, etc., then neither the class representatives nor Google possesses the power to authorize such activity by third parties. However, if the Court determines that the class representatives possess such rights as to Google, then the Court should carefully examine whether there exists a means for rival distributors to access orphan and rights-uncertain works consistent with Rule 23.
The DOJ suggests the following:
- Some issues could be resolved by turning the "opt out" into "opt in" for rights holders. (That would essentially be exactly what we have today under copyright law.)
- A "waiting period" before Google can make use of out-of-print works, to give rights holders a chance to surface. (This option seems to contradict #1)
- More effort should go into finding rights holders.
- A periodic reassessment of the marketplace for the out of print works (which, because of exposure, could have changed in market value)
The big question is: Is this the death knell for the settlement? And if so, where do we go next? I predict that if the suit is rejected we will have orphan works legislation sooner rather than later, since this suit has clearly high-lighted the need for such legislation. The copyright violation lawsuit against Google, however, remains. I fear that the settlement has poisoned the air for a fair use decision. We've seen the sausage being made, and it will be harder than ever to approach this project with an open and fair mind.
What can be done? Well, in France, when faced with a take-over of their cultural heritage by Google (their words, not mine), the government responded by giving libraries a large sum so that they can do the digitizing themselves; a kind of "by the people, for the people" digitization project. Is it too much to hope that could happen here?