Dear Judge Chin:
The Institute for Information Law and Policy at New York Law School submits these comments as an addendum to its earlier brief amicus curiae (IILP Brief). The IILP’s overriding concern is that the settlement tries to solve a legislative problem through the judicial system. The initial IILP Brief explained how this mismatch created dangers for class members and the reading public. It recommended that the Court insist on the modification of troubling provisions, seek additional sources of advice, and appoint separate counsel to represent the owners of orphan book copyrights. These recommendations were designed to repair substantive defects in the Settlement Agreement and to make the process fairer and more legitimate.
The Amended Settlement Agreement does not adequately address the IILP’s concerns. While it fixes some dangerous provisions of the Settlement Agreement, many remain ambiguous. Others are entirely untouched. It continues to pose real risks of unfairness to class members and the public. Procedurally, this haphazard response confirms the inappropriateness of using a class action settlement in this fashion. Even though the individual defects in the Amended Settlement Agreement all remain fixable in theory, their presence at this late date demonstrates that the process is flawed beyond repair.
Accordingly, this Court should reject the Amended Settlement Agreement. While the orphan works problem is serious, this massive class action settlement does not address it in a fair, just, and legitimate way. Approving the Amended Settlement Agreement would set a dangerous precedent for future cases and undermine democratic political processes.
This filing reflects the continuing evolution of my thinking on the settlement. I have gone from “Approve the settlement.” to explaining “How to Fix the Google Book Search Settlement” to being deeply concerned about the means it uses.” In September, our filing recommended further consultation and improvements to the class action process, in the hopes that sufficient oversight could keep it accountable and operating in the public interest. The letter filed today concludes that the way the settlement uses a class action is not salvageable.
I had been looking for a limiting principle: something that could justify a modified version of the settlement while also setting a clear boundary beyond which future cases could not go. But I have become convinced that no such limiting principle is likely to be apparent any time soon. Without one, there is no way to make the settlement consistent with the rule of law, and it should not be approved.
My thanks again to Daniel Kornstein and Mikaela McDermott at Kornstein Veisz Wexler & Pollard, who worked pro bono in helping draft, edit, and file the letter.