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.

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˲ ˲ 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