GBS Blogging: When the Unprecedented Becomes Precedent

I participated last Friday in a Berkman Center workshop on the Google Book Search settlement and the open-access roads not taken. In my remarks, I tried to sketch out the possibilities the settlement itself might open up to advance open access goals through future class-action settlements. It came across a little bit chaotically; there turned out to be quite a lot to say. I’ve gone back to my notes and written up an extended version, an essay I’m calling When the Unprecedented Becomes Precedent: Class Actions in a Google Book Search World:

Some people concerned about the proposed Google Book Search settlement, including me, have complained that the settlement is a ticket good for Google only. Google gets a set of copyright licenses that would be difficult to obtain through traditional negotiations—and effectively impossible in the case of orphan works. No one can compete on equal terms; the public at large can’t take full advantage of the orphan works Google has access to.

Google has consistently replied that anyone is free to do what it has done: scan books and seek a class-action settlement. I’ve expressed public skepticism about this claim, noting that there’s no legal right to such a settlement, only an uncertain prospect of seeking one. I’ve also worried in private that the settlement is so precisely tailored to Google’s circumstances that even the same exact deal would be of little use to anyone else.

But what if I’m wrong? What if others could obtain their own Google-style settlements without fuss? If the Google settlement were on the books, what other settlements would be on the table? What rights could Google’s competitors obtain to books; what could open access advocates do for other works?

This brief essay is an attempt to answer those questions by turning the settlement inside-out. Rather than focusing on what makes the Google settlement unique, I’ll examine what it would take to replicate it. David Balto has argued that the Google settlement would be a “precedent” for future, similar settlements. If so, then we should treat it the way that lawyers are trained to evaluate precedents from the first day of law school: by asking which of its features of it are essential to its precedential value, and which could be changed the next time around.

As always, I welcome your reactions.


There’s been some upset about this settlement over hear in New Zealand, asserting that this means Google can now present books which are out of print in the US, potentially disenfranchising local authors with books which are in print here.

Is this true, or is it some kind of FUD?

Regards, Andrew McMillan.