GBS: Tim Lee’s Libertarian Perspective on the Settlement

Timothy B. Lee, The Libertarian Case against the Google Book Search Deal, Cato@Liberty (Sept. 14, 2009):

I was (and still am) firmly on Google’s side on the copyright claims at issue in the lawsuit. But the proposed settlement is another matter. …

The fundamental problem with the settlement is its audacious use of class action law. As my former colleague Mark Moller has argued, the aggressive use of class action law raises fundamental issues of fairness, due process, and the separation of powers. …

This danger is especially acute in the Google Book Search case because of the incredibly broad scope of the class the plaintiffs purport to represent: all authors of books still under copyright in the United States. The settlement class doesn’t just include authors and publishers of still-in-print works, who are relatively easy to contact and can opt out of the settlement if they don’t like its terms. It also includes the copyright holders for millions of “orphan works” — works that are in copyright and whose authors cannot be located. These copyright holders are, by definition, difficult to find. The settlement effectively expropriates these absent parties for the benefit of Google and the large publishers leading the lawsuit.

I find interesting the similarity between Lee’s libertarian concerns and my own progressive concerns:

The final problem is procedural. The settlement was negotiated in strict secrecy by a small group of lawyers, and then presented to the public as a fait accompli. That would be one thing if this were a purely private settlement between a few litigants, affecting only their own rights. It’s not, though. The original lawsuit was a class action, effectively behalf of everyone who’s every written or published a book. Other than the handful of authors and publishers who were directly represented, none of the millions of other plaintiffs was in on the negotiations. Neither was the public at large.

Although I focus on the reader side of the copyright equation and Lee focuses on the author side, our points are fundamentally about the same thing: the rule of law. This emphasizes to me that, in fact, the Google Book Search settlement isn’t particularly political in the partisan sense. You can make a progressive argument that it’s good for access or bad for privacy; you can make a libertarian case that it’s bad for property rights or good for disruptive innovation. I’ve written about the settlement for the American Constitution Society and Campus Progress because they were interested, not because I felt that the issues inherently tilt left. I’d gladly also explain why my concerns should resonate with libertarians—but it looks like Lee has that angle well covered.

UPDATE: Don’t miss Tim’s follow-up post. He had a conversation with Google’s Derek Slater, and blogs about it. Both Slater’s points and Tim’s replies are interesting and important.

“Other than the handful of authors and publishers who were directly represented, none of the millions of other plaintiffs was in on the negotiations.”

I was startled to learn from Julia Wright’s submission to the EU hearing that despite being a member of the Authors Guild, she did not learn about Google’s Library Project or, evidently, the negotiations until February this year. The implication seems to be that the Authors Guild did not adequately inform its members about the negotiations, let alone consult with them over the direction in which these were being taken. If this is the case, I do not see how they can convincingly claim to represent any members of the settlement class, even their own membership (apart, of course, from the five named plaintiffs).

Scott Gant’s objection raises the question of the role of the Authors Guild in the negotiations. All along, it’s been ambiguous what justifies its seat at the table: is it itself a representative (like the five named authors), does it represent its members, or is it just there in an advisory capacity? My understanding is that originally it was present because its members were representative class members, but that in the proposed settlement, it no longer has a representative role.

In any event, the duty of the Guild to consult with its members is primarily a matter of its bylaws. It has the duty (or lack of one) to consult with its members that its own governing documents specify. They may well authorize the board to act as it’s done. The class action will be justified or not on the basis of the Rule 23 questions: how the class’s lawyers have represented the class members, and whether the settlement is fair and adequate to them.

Another Authors Guild member author/attorney Mark Levine filed objections confirming the schism in the Authors Guild membership over the deal.

The introduction in the Japan P.E.N. Club brief makes an argument remarkably like Tim Lee’s.

Biographer and historian Robert K. Massie takes a swipe at the present leadership of the Authors Guild in his opt out letter:

I am a former president of the Authors Guild (1987-1991) and have been defending authors’ rights to copyright protection for a long time. Other than outright theft of copyrighted work in the Soviet Union (now belatedly and only partially corrected), and in China, Google’s current effort is the most egregious effort to steal authors’ creative work that I have ever seen. As you must know, not only does the Authors’ Guild not represent all American authors, but many if not most of these authors have no idea what the proposed settlement is all about.