GBS: ABA IP Section Teleconference Report

Marc Miller, a 3L at New York Law School and a member of the PIBSI team, filed the following report on a recent ABA teleconference:

On Tuesday, December 1, the ABA Section of Intellectual Property sponsored a CLE teleconference on “The Google Book Settlement: Where Are We?” Lisa Dunner of Dunner Law PLLC moderated.

The first speaker was Jonathan Band of Policy Bandwidth, the author of “A Guide for the Perplexed” (Parts I, II and III). He summarized the factual context of the Google Books project and the procedural context of the class-action lawsuit, including the recent amendments to the proposed settlement agreement.

Next, Matthew Schruers from the Computer & Communications Industry Association discussed competition issues. As in the CCIA’s filing, Schruers focused on rebutting antitrust criticisms of the settlement. He described Google’s “so-called monopoly over orphan works” as counterintuitive, saying that Google merely has a license to works that nobody wants and which not constitute a separate market. He also said that the amended settlement agreement alleviates the price-fixing concerns by permitting various types of discounting and simply drops the most-favored-nation clause entirely. In conclusion, he discussed the benefits of the settlement as a rights-clarification device and its potential as an open platform to allow other licensees to participate.

Finally, Ralph Oman, former Register of Copyrights and a lecturer at George Washington University Law School, discussed the Rule 23 issues posed by the settlement. Given the questionable sufficiency of the representativeness of the class, Oman suspects that this issue will eventually find its way up to the Second Circuit—perhaps, by an appeal by a disgruntled copyright owner. He explained that the amended settlement, which drops nearly all foreign authors, mooted many of his planned comments. He concluded with an anecdote about how authors are always chasing down a chance for immortality, a chance once seen in acid-free paper, but now made possible by digital books.

The audience asked two questions. The first concerned the claims made by state attorneys general. Band explained that the amendments direct revenue generated by unclaimed works to the new Unclaimed Works Fiduciary, instead of to known rightsholders. Eventually, after notification to state governments, these funds are directed to charity.

The second question was whether it would be possible for copyright owners to sue any libraries on a theory of secondary liability. Band noted that libraries would have a strong fair use defense, were it to be litigated. Furthermore, there are provisions in the settlement that provide indemnification for the libraries, given that they follow certain procedures. Schruers added that Google was the better strategic choice as a defendant, given their deep pockets and less sympathetic position relative to the libraries. Oman concluded by reminding the audience of the libraries’ right to make archival copies of works held in their collections.