GBS: Reed-Elsevier Oral Argument Transcript

The Supreme Court heard the Reed-Elsevier case—another massive copyright class action settlement—today. The outcome there could, depending on how it’s written, exert some influence on the Google Book Search case. If nothing else, it will instantly become the leading Supreme Court guidance on the intersection of class actions and copyright.

Here’s the transcript of the oral argument.

There was much discussion there about the orphan book issue well worth reading, and several Justices strugled with understanding the class action implications that failure to opt out of the class action, imparts a license to e publish for the balance of the copyright term. I was struck by the assertion of amicus counsel Jones Merritt at page 50 that scanning a work in PDF is not a violation. Is this a resolved issue? From reading several of the objecting briefs in the GBS case, I understood that unlicensed scanning of a registered work was an actionable violation just like xeroxing a complete book, and was certainly not fair use(like snippets search results), and not akin to a library lending out a book to a borrower. None of the Justices questioned this statement, but certainly it seems to me to be still an unresolved legal question.