What’s wrong with the Google Book Settlement, Part 2

In my last post, I discussed the copyright issues that lie at the heart of the Google Book Search dispute, and why Google’s actions make it much harder for potential Google competitors to enter the book search engine market. The existence of the agreement will help publishers make the argument that unauthorized book search engines undermine the market for “search engine licensing rights,” and are therefore not fair use.

The other problem with the settlement, which I’ll discuss in today’s post, is that it will give Google legal immunity from copyright liability that goes far beyond what it could have obtained via a purely private settlement. As I discussed in my last post, the central obstacle to building a comprehensive book search engine is the huge number of orphan works. A search engine that includes orphan works will be significantly more useful than one that doesn’t, but anyone scanning orphan works and including them in a search engine exposes herself to potentially enormous liability. And because the owners of orphan works are hard to find, there’s no practical way to get a license from all of them before starting a scanning program.

At least that’s true for most companies. But Google has essentially found a loophole: If a judge certifies a class action lawsuit involving the class of all copyright owners, then suddenly Google has the ability to “negotiate” with the owners of millions of orphan works without identifying them first. Thanks to the magic of class action law, whatever the Authors Guild agrees to automatically binds any copyright holders that don’t specifically opt out (and by the nature of orphan works, most won’t). By signing an agreement in one class action lawsuit, Google effectively solves the orphan works problem for itself, by shifting the burden to the owners of orphan works to notify the court (and Google) if they don’t want to participate in the settlement.

The orphan works problem is a real and serious concern, and so from one perspective it’s good that at least one company has found a way around it. But this arrangement raises serious questions about fairness and the rule of law. The class action mechanism essentially gives a private party—the Author’s Guild—the power to excuse individual companies from obeying a law that apply to everyone else. The legal immunity conferred to Google by this settlement goes far beyond the rights the Guild could convey in an ordinary contract negotiations. Orphan works immunity is only available because the judge certified the Guild as a representative of millions of orphan work owners.

And this is immunity that would-be Google competitors likely can’t get at any price. The class action mechanism can only be invoked in the context of a real lawsuit, which means that a would-be Google competitor would have to start scanning without an agreement and provoke the Author’s Guild into suing them. But as I discussed in my last post, the Google settlement is likely to undermine other firms’ ability to raise fair use defenses for book search engines, which means that the authors and publishers would be much more likely to win the lawsuit outright, giving them little reason to settle the case.

If we’re going to have an orphan works defense in copyright law, (and I think we absolutely should) that should be done through the ordinary democratic process. The proposal should be debated and approved by Congress, and the defense should be equally available to everyone. Obviously, Congress couldn’t pass legislation creating an orphan works defense that only Google could claim. It’s worse, not better, if the courts do it. The settlement is generally described as a legal agreement between two private parties, but that’s not really an accurate description. The agreement implicates the rights of millions of copyright holders who were not represented in the negotiations. And so it’s critical that the court subject this agreement to much more careful scrutiny than it would an ordinary settlement that only affects the two parties.

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