Two weeks ago, I talked about the Google Book Search settlement at a symposium at Georgetown; yesterday, I talked about it at a conference at Columbia. I’ve taken my remarks from these events, cleaned them up for print, and edited them down into a short essay I’m calling “Google and the Zombie Army of Orphans.” (PDF, HTML). Here’s the key passage:
This class action, though, this one is special. It’s not just Google ponying up for past wrongs. Instead, this is a structural settlement; it reshapes the entire book industry by giving Google and Google alone access to this comprehensive out-of-print backlist. To make that happen, the settlement takes away the rights of people who aren’t before the court. Indeed, knowing what we do about the orphan works problem in copyright law, we know that these absent class members are highly unlikely to be able to do anything about this massive giveaway to Google taking place supposedly in their name.
It’s a version of Russell’s paradox, applied to class action litigation. There’s a class here that consists of all people who don’t realize they’re part of it. Under the guise of this class action, the named plaintiffs have been able to use the huge collection of orphan works copyrights as a bargaining chip. The named plaintiffs negotiated away everyone else’s rights, lining up all those millions of books for Google’s benefit. The orphans have become zombies, raised from the dead by the dark magic of a class action, turned into a shambling army under Google’s sole control.
This, I submit to you, is not the way things ought to be done a democracy. We have political processes for resolving major social issues. We have a Congress; it holds hearings and passes bills. We have administrative agencies that can take expert advice and make reasoned decisions. The courtroom isn’t supposed to be the place where we resolve huge issues that involve the carefully regulated copyrights of multi-million-member classes. Litigation is structured to sort out individual adversarial you-versus-me disputes. It’s a uniquely bad way to sort out complex, sweeping questions—such as how we get at all of our information and all of our books.