books. Copies of the books would also
be available for individual purchase.
Publishers and authors would get paid
for the new market Google created for
out-of-print books. Google would not
only make some money from its 37%
share of GBS revenues, but would also
be able to make “non-display uses” of
books for purposes such as refining its
search technologies.
The DOJ agrees that the public
would benefit from the enhanced public access to millions of books that
would attend approval of the settlement. Yet it has reluctantly concluded
that Judge Chin lacks power to approve
this settlement because it goes so far
beyond the issues actually in litigation
that it is “a bridge too far.” The GBS
settlement abuses the class action process because the litigants took the occasion of a lawsuit on one narrow issue
and used it to dramatically restructure
the market for digital books.
The DOJ would endorse a settlement that required class members to
opt-in to Google’s commercialization
plans. But Google has insisted that
the settlement’s opt-out approach
(that is, Google gets to commercialize
the books unless the copyright owner
comes forward to say no) is essential
for establishing the new marketplace
it envisions.
my objection to the GBs settlement
I was one of the 26 non-party speakers
to whom Judge Chin granted five minutes to present their views. After introducing myself and noting that I had
filed two letters objecting to specific
terms of the GBS settlement, the latest
one on behalf of 150 academic authors,
I made the following points:
˲ ˲ Most of the books that will be regulated by the settlement agreement are
out-of-print books from the collections
of major research libraries such as the
University of California, and most of
these books were written by scholars
for scholarly audiences.
Pho ToGRAPh by MARK lennIhAn/AP Pho To
˲ ˲ Many scholars own copyright interest in their books at least for electronic versions. Many have clauses in
their contracts that allow author reversion rights upon the book going out of
print. These books will be core parts of
the institutional subscription database
that will be licensed to universities
such as UC Berkeley.
˲ ˲ In the past year I have spoken to
many colleagues at UC Berkeley and
elsewhere about the proposed settlement. When I asked them whether
they would be willing to allow their
out-of-print books to be made available on an open-access basis, to a person, they have said yes. Academic authors also tend to believe that orphan
books should be available on an open
access basis.
˲ ˲ Orphan books are not a trivial matter. The Financial Times has estimated
the number of U.S.-published books
likely to be orphans as between 2. 8 to
five million. These books will form a
substantial part of the institutional
subscription database to which my
university and others are expecting to
subscribe.
˲ ˲ The Plaintiffs have characterized
open access advocacy as “a prime example of…parochial self-interests.”
They also stated that the interests of
open access advocates “plainly are in-
imical to the class.” (As if the word “
inimical” wasn’t strong enough by itself,
they italicized the word to emphasize
just how inimical they think open access advocacy really is.)
These statements show that the Authors Guild has not fairly represented
the interests of academic authors who
are members of the author subclass.
It also bears mentioning that academic authors would not have brought
this lawsuit against Google because we
tend to think that scanning books to
make snippets is available is fair use.
If this case goes back into litigation instead of being settled, I will be writing
briefs in support of Google, not in support of the Authors Guild.
But it’s not just me and the 150
people who signed the supplemental
academic author objection letter who
endorse open access. Last August a
letter was sent to the court on behalf
of the UC Academic Council, which
represents 16,000 faculty members at