if this settlement
may feel free to go
out and scan other
tion, and set the stage for the conversation to be carried on by our successors.
The set of objections I made on behalf of academic authors should not be
swatted down one by one, as they were
in the Plaintiff’s Objection memo, but
viewed as important component parts
of the cultural ecology of knowledge in
academic communities. This ecosystem will be impaired if the ecosystem
envisioned in the settlement agreement is adopted instead of the one that
has long prevailed and should prevail in
the future for academic communities.
between experiences, people,
and technology, showcasing
emerging innovations and industry
the University of California, expressing
concern that open access preferences
of academic authors would not be respected by the Plaintiffs.
More important, though, is the
open access recommendation of the
U.S. Copyright Office in its report on orphan works. The Office considered and
rejected an escrow model for orphan
works akin to that in the amended settlement agreement. Once the orphan
status of a work has been determined,
the Copyright Office thought the work
should be available for free use. Congress has modeled its orphan works
legislation on the Office’s recommendation. What should be done about orphan works is a public policy issue that
should be decided by Congress, not
private parties or the courts.
It is far more consistent with the
utilitarian principles of copyright law
to allow orphan books to be made available on an open access basis once we
know that they are, in fact, orphaned.
This is important to academic authors
because what the Plaintiffs want to do
is maximize revenues for the millions
of orphan books that will be in the institutional subscription database. This
is why I have asked for some meaningful constraint on price hikes as part of
the settlement agreement.
There is a fundamental difference
in perspective between the Plaintiffs
and academic authors about what
books are really about. For the Plaintiffs, books are commodities to be exploited for maximum revenues.
Books for academics are more like a
slow form of social dialogue. The books
from the past open the conversation
that scholars pick up and carry on. The
books we write further that conversa-
setting a Precedent?
While I could live with the GBS settlement if it was amended as suggested
in my letters, I worry very much about
the precedent that would be set by approval of this particular settlement.
Google’s founders say the company’s goal is to organize all of the
world’s information. As we all know,
books are not the only type of work
that contains the world’s information. I have been wondering for some
time which sector of the copyright
industry will be next to have its works
scanned by Google for inclusion in its
If this settlement agreement is approved, Google may feel free to go out
and scan other copyrighted works.
And if their rights holders object, the
pragmatic response might well be: we
could litigate about this, but I have a
good fair use defense, and it would be
expensive and ugly to litigate, so why
don’t we just reach a deal on my terms
right now? Approval of the settlement
would give Google unfair leverage in
But beyond that, I think that approval of this settlement would encourage
other class action lawsuits that would
then seek to justify their efforts to remake copyright law by saying: Congress
is too dysfunctional to address this
problem, so we must be allowed to do it
through a class action settlement. This
is just bad public policy.
Pamela Samuelson ( firstname.lastname@example.org) is the
Richard M. sherman Distinguished Professor of law and
Information at the university of California, berkeley.
A transcript of the fairness hearing, along with all
documents filed with the court, is available at http://www.