I’ve seen a number of comments asking me to explain my opinion on this issue and I guess that I should try to do that again ( I did it earlier but I can’t find it). Remember that I’m a lawyer and that I may come at this from a different viewpoint than many “real” people.
1. This is not the place for a class action settlement: This is my most important objection. Class actions are supposed to be an administrative method of consolidation hundreds, or thousands, of real or potential lawsuits into one for the purpose of relieving the courts of clutter and preventing inconsistent results when thousands of exactly the same issues are tried over and over again. They are often used in consumer product suits. Thousands of consumers get hurt by a defective product and since the issues are exactly the same in each case, just try it once and get it over with. Class actions are not, I repeat not, designed to change the law or make new law. What is being attempted here is to re-write copyright law through the courts and bypass congressional action. This is wrong and is not the purpose for which class action suits were designed. Let Congress do its job, and if it doesn’t I guess that’s tough. (But that’s a whole other issue.)
2. Google is very rich: It makes it easy for them. Do you know how much a suit like this costs? I do. Tens of millions of dollars in legal fees. (In most class action suits the people who benefit the most are the lawyers. You may get your $10 payment, but the lawyers involved get literally millions apiece.) This means that once the settlement is concluded Google will have an effective monopoly because it will only be someone with a very deep pocket that can defend a similar suit. Brin says that if this goes through it will be a “beacon of compromise in case of a similar lawsuit”. This is true, but disingenuous. Once the instant suit is settled it does not apply, in any way, to someone else who wants to digitize books. That means if you or I want to do the same thing we risk exactly the same lawsuit that Google is in the middle of now. The current settlement protects Google and Google only. For Google the cost of defending itself is a drop in the bucket of its cash flow. For you or me, or for any small or medium sized company, the costs of defense are prohibitive and mean, as a practical matter, that Google will be left as the last man standing, unless some other big guy, like Microsoft, wants to run the gauntlet. You can’t tell me that Google hasn’t factored this into their business plan. I would certainly advise a client of this if he came to me. Again, this is what you get when you try to settle an issue like this through a lawsuit as opposed to congressional action. Only the rich come out on top.
The two reasons above are why I’m against the settlement, even though I think the end result is necessary and laudable. It is just the wrong way to go about it.
This is the first comment of the Google Settlement that says exactly what I feel about it.
* This is not what class actions were intended for.
* It affects only Google’s actions on copyrighted works.
Something should be done about orphaned works. But it should be done by law makers, not by court action. And preferably internationally by amendments to the Berne Convention. It’s been thirty years since the Berne convention was last amended, the longest period without change in its history.
This is the first comment of the Google Settlement that says exactly what I feel about it.
* This is not what class actions were intended for.
* It affects only Google’s actions on copyrighted works.
Something should be done about orphaned works. But it should be done by law makers, not by court action. And preferably internationally by amendments to the Berne Convention. It’s been thirty years since the Berne convention was last amended, the longest period without change in its history.
Sorry… forgot to say great post – can’t wait to read your next one!
As a mechanism, class action lawsuits may not be intended to lead to changes in the law but they often do – particularly in regard to consumer and product safety.
Such lawsuits often force the hand of government to address problems or issues that they may have ignored either intentionally or due to lack of interest or awareness.
The Google Settlement would likely do much the same thing. The issues involved with the settlement need to be addressed.
Google has lots of money to be sure but so do other corporations. I don’t buy Paul’s stance that money alone is really a factor in providing some sort of monopoly to Google in this area. How much has Google spent in this effort (including the scanning of the books)? Perhaps a few hundred million? That may be chump change to a corporation that recently admitted that they paid ONE BILLION dollars too much for You Tube but that is also a fairly routine expenditure for Microsoft or Murdoch or Amazon or other well capitalized companies looking to invest in other ventures.
The bottom line though is – in the absence of the Google Settlement what is going to be the impetus to break the logjam in regards to orphaned works?
My fear is that when government finally does start working on changing copyright law the main beneficiary of changes (and the changes won’t be to just address the issue of orphaned works) will once again be Big Media.
It is historically inaccurate to suggest that courts should not set copyright policy. An 1841 Massachusetts court developed the fair use doctrine. See Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841). Courts had been applying the fair use doctrine for many years when congress finally codified it in the Copyright Act of 1976 (17 U.S.C. § 107). Just as it is appropriate for congress to make laws regarding copyright policy, the courts also have an appropriate role in setting copyright policy when deciding cases involving copyright law.