Uber-distinguished legal scholar Richard Epstein has written an op-ed for the Financial Times, Google-itis: Beware of Class Action Settlements. He comes out largely against the settlement but with plenty of idiosyncratic twists. There is something in here to delight and to infuriate almost every observer. A few interesting bits:
In mid-December the Google Books Project suffered another blow when a Paris Court rejected the fair use defence to a suit of copyright infringement. The publishing group, La Martinière, brought suit against Google’s practice of making a single copy of a published work for use in its advertisement. … Google’s rationale is catchy, but the French courts were right on the money. …
If I had to pick a single word to describe Google Book Search, “advertisement” would not be it. The virtues of searchability go far beyond merely convincing people to buy things.
The French makes good sense because a successful market transaction can supply something that a fair use doctrine negates: financial compensation for authors whose works are included in the Google Books Project.
This way of putting things presumes that authors are entitled to compensation for inclusion in the search index. I assume that Epstein believes they are; I’d like to hear his rationale.
The initial barrage of criticisms rested chiefly on antitrust grounds that my Chicago colleague Randy Picker carefully analysed both here and here. It seems fair to say these concerns are largely mitigated in the Amended Settlement.
Antitrust being among the polymathic Epstein’s many specialties, this is a significant comment.
The clean victory of the publishers in France seem to preclude the possibility of a Gargantuan settlement there.
That takes the prize for best use of a capital letter I have seen this year.
Any mortal who reads the Google settlement, as I have, will be defeated by its obscurity and complexity.
Read literally, this sentence implies that either Richard Epstein is immortal or he’s been defeated by the settlement. Both of these strike me as unlikely.
The root difficulty lies in the simple fact this proposed settlement goes far beyond the contours of the original complaint. When the Authors Guild sued Google, its members were united. Authors and publishers, who squabble over all sorts of things, both wanted to stop the future infringements and to get damages for the past ones, which they could divvy up in accordance with their individual contracts. … Unfortunately, terms of Google settlement create unnecessary conflicts of interest between authors and publishers that cannot be easily papered over.
This is a notable move; it ties the future claims issues to the conflict between authors and publishers.
One troublesome feature is the formation of the Google Registry run by the Authors Guild whose term insulate Google from the direct claims of authors, even for an accounting of individual royalties, while allowing Google very broad access to aggregated data with immense value for nondisplay uses. In addition, no author can easily figure out the consequences of opting out.
I believe that some of the regular commenters on this blog are likely to agree with Epstein on these points.
Here is one caveat. It might make sense to allow Google to presume provisional consent for “orphan” works, narrowly defined, say, to cover books published 60 or more years ago, which are now out print, with standard royalties paid into a fund. The fear here is that works will remain dormant because no one is around to press the right radio button. Allowing immediate use with a reverse default has a good shot at passing the fair use test because the transactions costs for reaching these unknown authors are sufficiently high to allow for a market bypass.
Query: would this be in the class-action mechanism (and thus working only in Google’s favor), or would this be a general privilege that anyone could take advantage of?