In a provocative blog post, Jane Litte analogizes the new Unclaimed Works Fiduciary to Blackwater, the mercenary-slash-goverment contractor. (Technically, I guess the UWF would be Xe, post-name change.) Her point is that the Registry will be performing a fundamentally governmental function but in a privatized way. If so, is the settlement akin to an act of privatized eminent domain?
I think this is a fair question about the settlement, although primarily in a metaphorical sense. The nonexclusive nature of the licenses, I think, precludes a real takings or public use argument. But it’s an interesting metaphor; I’ve played around with “adverse possession” (or perhaps “prescriptive easement”) and “eminent domain” as ways to characterize the settlement. Both of these ideas get at the way in which the settlement represents a deployment of the state’s legal authority to reallocate underused property, with all the troubling implications that raises. One way of putting the ultimate question is whether this deployment has been hemmed in with sufficient safeguards, substantive and procedural, to make this of state power legitimate.
While we’re trading in metaphors, I’d also like to suggest that the move from Registry to UWF for dealing with the orphans is fertile ground. In a sense, the UWF is a true court-appointed guardian. It’s going to be (assuming there’s no funny business in the Registry’s charter) responsible for safeguarding their interests. “Fiduciary” means that if they later show up, they can sue it if it disregarded its duties to them. This is a real improvement over Settlement 1.0, which I criticized for not containing “internal” procedures to make sure the orphans are properly protected if claiming copyright owners opt out of the various Google programs. The UWF will be responsible for pulling the unclaimed works out, too, if the deal is no good. That’s a substantial improvement.
At the same time, the need for a UWF underscores just how remarkable this class action is. What other class action is so dangerous to class members that they need an ongoing guardian, able to act on their behalf without instructions, just to safeguard their interests? It’s precisely because the settlement trades in future claims based in future conduct that these possibilities for abuse arise and must be guarded against. But stare closely enough at that fact, and it leads, I think, to asking difficulty questions about the propriety of the class action itself.
Side thought: I initially read the title of Jane Little’s post as asking whether the settlement would create a “backwater” for books. I hope not, but what a metaphor!
UPDATE 11:00 PM: I reread the amended settlement more closely, and I don’t believe that it empowers the UWF to pull unclaimed books out of Display Uses.