Here is an excerpt from a very thoughtful analysis of the settlement by Kenneth Crews of the Columbia University Libraries/Insormation Services Copyright Advisory Office:
The filing is remarkable for its lucid dissection of select issues. It is diplomatic, and it holds out repeated hope for the continued talks among the parties to the case. But clearly the DOJ does not like what it sees. In my reading of the filing, I found my attention drawn to several excerpts that I find especially compelling. Here are a few clips from the document, with my accompanying reflections.
“As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply
This statement is powerful and diplomatically loaded. It states directly that the proposed settlement has not passed the “searching analysis” that ought to be applied. (“Rule 23” is from the Code of Civil Procedure, and it imposes the requirement of fairness in a settlement of a class action lawsuit.) The statement is also a strong hint to the court that it could reject the settlement outright on the policy grounds that Congress should have the lead. In turn, the statement is a signal to Congress that it should not retreat from its role in addressing some of the issues involved in this case..
