license to institutions of higher education, among others. Nor could it credibly make such a claim. Yet, the proposed
GBS settlement would give it rights to do
both of these things (and more).
The scope of the settlement, in
other words, went far beyond the issue in litigation. At the fairness hearing the DOJ lawyer pointed out it was
the duty of class counsel to litigate the
claims they brought or to settle those
claims. They had instead used the existence of a dispute about GBS scanning
to remake the market for e-books and
change the default rules of copyright
law (which generally require a prospective user to get permission in advance
before making commercial uses of the
works), as the proposed GBS settlement would arguably do.
Litigation or Legislation?
Judge Chin also agreed with the DOJ
that the only legitimate way to restructure rights and e-book markets in the
manner proposed in the GBS settlement was through legislation.
The quasi-legislative character of
the settlement was most evident in
its solution to the so-called “orphan
works” problem. Works are deemed
orphans when their rights holders cannot be found through a reasonably diligent search. A book published in 1953,
for instance, may still be in copyright
whose owner is a firm that no longer exists and/or an author who died without
heirs. In 2006, the U.S. Copyright Office
proposed legislation to allow orphan
works to be made more accessible, but
so far this legislation has not been enacted by Congress. (The EU has recently proposed a directive addressing the
orphan works problem.)
The proposed settlement would
have given Google the right to commercially exploit all orphan books
because their rights holders were
members of the class that would
have virtually consented to these uses
through the judge’s approval of the
settlement. Judge Chin decided it was
for Congress, not the courts, to address the orphan works problem.
adequacy of Representation
The Authors Guild complaint named
three of its member authors as repre-
sentatives of the class of authors affect-
ed by GBS scanning. These authors,
Guild lawyers, and lawyers designated
as counsel for the class have an obli-
gation to represent the interests of all
members of the class.
the actual issue in
litigation was whether
scanning books to
index their contents
and provide snippets
was copyright
infringement
or fair use.
individual reader uses of GBS books,
but had virtually no provisions limiting
what Google could do with this information. In addition, he expressed reservations about the antitrust concerns
raised by the DOJ and by Yahoo! and
Microsoft about the extra advantage
that Google would have in the search
market by getting a license to improve
its search engine with GBS books.
Benefits of the
Proposed settlement
Controversial as it was in some respects, the GBS settlement, if approved, would have brought about
many socially beneficial results. Chief
among them was a vast expansion of
access to out-of-print but in-copyright
books. Up to 20% of their contents
could have been displayed to users in
response to search queries. Millions
of these books would have been freely
accessible at terminals at public libraries (one per library) and at institutions
of higher education (one per so many
students), as well as through institutional subscriptions available to libraries and other institutions. E-book
versions of these out-of-print books
would also have been available for
purchase by consumers, which they
could access “in the cloud.” In addition, Google pledged in the proposed
settlement to make digitized copies of
these books available in formats accessible to print-disabled persons (such
as versions in Braille or with enlarged
typography).
There are already more than 15
million books in the GBS corpus, the
overwhelming majority of which come
from the collections of major research
libraries. These collections are dense
with the accumulated knowledge of
the ages, and Google is scanning more
of them every day. It was thus no exaggeration to assert that approval of the
settlement would have vastly expanded access to our cultural heritage.
The GBS settlement would have
permitted Google to provide its library
partners with copies of scans of books
from their collections that could be
used for preservation purposes and
for “non-consumptive research” (for
example, tracing the influence of a
thinker over time or the origins of
words). Google itself would have been
privileged by the settlement to engage
