There has been a sudden burst of activity in the Google Books case and the process of arriving at a settlement of the copyright infringement claim brought against Google by a group of authors and a publishers trade group. Last week Publishers Weekly reported that Judge Chin, who is hearing the lawsuit, rejected a motion to allow the Internet Archive to intervene in the case, which would have meant that IA would become a official party to the litigation. As PW says, “The IA wants to remove orphan works from the settlement and limited the settlement to rightsholders who have filed a claim.” With the denial of their motion to intervene, IA will have to look for another way to attain this end. More on that in a minute.
This week, two quite surprising developments have been reported (and really, the denial of IA’s motion was not very surprising). First, Judge Chin has decided to delay the deadline for authors to opt-out of the settlement class by four months (until September 4), with a parallel delay in the final hearing to approve or reject the settlement (until October 7). It seems Google had asked for a shorter delay in the deadline, and all parties seem to have been surprised by this ruling. But maybe it is not so surprising in light of this article in yesterday’s New York Times reporting that the Justice Department has decided to begin an inquiry into whether the settlement agreement poises an anti-trust problem. It is hardly a novel thought that there might be a anti-trust concern in the proposed monopoly over digitized books that would be created by the Google settlement, but it is, perhaps, unusual for the Justice Department to take notice of those concerns so quickly and to act before there is a final hearing on the settlement. Perhaps it was notice of that decision from Justice that prompted Judge Chin to delay the deadline and hearings.
So with this extra time, what should the concerned parties be doing? Specifically, is it possible to get the judge to limit the settlement to the parties in the litigation and to exclude orphan works? This long blog post by Professor Pamela Samuelson about the settlement suggests that there is another option, an objection by members of the putative class to the very certification of that class. As Samuelson points out, there has not yet been any hearing on whether or not the class in this class action suit really represents all of the authors who would be members of it, and with the settlement, there is not likely to be such a hearing. Google, as the defendant in the suit, would usually challenge a class certification and force the court to decide that the plaintiffs before him really do represent the rights and interests of all of the proposed class members. But with the settlement, Google has a huge financial incentive to support the class certification rather than oppose it — only through class certification will they get the compulsory license to digitize orphan works that is really at the heart of this settlement.
It is hard to believe that the Authors Guild really does represent the interests of the millions of rights holders in orphan works who, by definition, are not exercising those rights and who will not gain from the settlement. To include orphan works in the settlement is a shortcut to a lucrative business model, not a genuine effort to protect rightsholders, and it will likely derail legislative efforts to address the orphan works problem in a comprehensive way. It should be noted that even though the settlement is technically non-exclusive, no one else who undertakes a digitization project in the future will be able to get such a compulsory license for orphan works, since it depends on an extremely expensive and difficult manipulation of a very quirky aspect of US law, the class action mechanism. So if the Internet Archive really wants to exclude orphan works from the settlement, their best move would be to assist copyright holders who are members of the putative class to file an objection to certification and try to force a full hearing on the issue of representation.
If a class was ultimately not certified, the settlement would apply only to the parties in the litigation, and one has to believe that those parties would not be interested in settling unless they could get the immense commercial advantage that a class settlement would provide. The final result might be that the fair use issue with which the case began would actually go to trial. And that, I think, would not be a bad thing.