The Google Book Settlement as Copyright Reform
Seminar: Research Exchange | September 22 | 12-1 p.m. | Sutardja Dai Hall, Banatao Auditorium, 3rd floor
Pamela Samuelson, Professor, Berkeley Law School and the School of Information
The schedule for the fall Research Exchange is at http://www.citris-uc.org/events/RE-fall2010.
The proposed Google Book Search (GBS) settlement can be viewed as a way to achieve copyright reform through the class action settlement process. This is especially evident in its plan for commercializing orphan works and in the compromises it embodies concerning revenue splits for authors and publishers in respect of ambiguous contracts about e-book rights and its new procedures to ensure that author reversion rights will be effectuated.
Congress has considered legislation to deal with “orphan works” for several years, but it has yet to enact a law that would allow persons and institutions to reuse copyrighted works when they have made a reasonably diligent search for the rights holder to ask permission.
The idea underlying the GBS settlement is very clever: let Google scan the books and commercialize those that are out of print, and use the money from this commercialization to locate rights holders and sign them up to receive their share of the revenues Google is generating from their books.
The DOJ has asserted that the quasi-legislative nature of the GBS settlement renders it “a bridge too far,” and that the court lacks power to approve a settlement that diverges so substantially from the issue in litigation and grants Google rights far beyond that which it could have achieved had it prevailed in the lawsuit. Along similar lines, the Register of Copyrights has characterized the settlement as “an end run around Congress.” DOJ has argued that the court lacks power to approve a settlement that is so far afield from the issues in litigation in the case.
Also quasi-legislative in nature are the provisions of the settlement dealing with the rights and responsibilities of various libraries, those dealing with reseller rights, the safe harbors and releases of future liability that Google will get from the settlement, and the arbitration regime it imposes for settlement of disputes over ownership and revenue splits.
If Congress is not able to pass legislation that would enable this sort of reallocation of rights and responsibilities to enable a massive digital database of books such as GBS aims to be developed, is that a sound reason for saying that the courts have power to achieve this end? What dangers might attend the approval of such a settlement, both as regards Google and the future of class action lawsuits in the copyright field?
Available Now: Prof/ Samuleson’s talk at CITRIS, Sept. 22, 2010