I’ve uploaded a draft version of my latest paper, The Elephantine Google Books Settlement. It’s forthcoming in the Buffalo Intellectual Property Law Journal as part of a symposium issue on Google. The paper is the written-out version of talks I’ve been giving for the last few months on the theme of how best to think about the settlement. While it raises class action, copyright, and antitrust issues, you have to smoosh the three bodies of law together to really wrap your mind around it. Here’s the abstract:
The genius—some would say the evil genius—of the proposed Google Books settlement is the way it fuses legal categories. The settlement raises important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement is more than the sum of the individual issues it raises. These “issues” are, really just different ways of describing a single, overriding issue of law and policy—a new way to concentrate an intellectual property industry.
In this essay, I will argue for the critical importance of seeing the settlement all at once, rather than as a list of independent legal issues. After a brief overview of the settlement and its history (Part I), I will describe some of the more significant issues raised by objectors to the settlement, focusing on the trio of class action, copyright, and antitrust law (Part II). The settlement’s proponents have responded with colorable defenses to every one of these objections. My point in this Part is not to enter these important debates on one side or the other, but rather to show that the hunt to characterize the settlement has ranged far and wide across the legal landscape.
Truly pinning down the settlement, however, will require tracing the connections between these different legal areas. I will argue (Part III) that the central truth of the settlement is that it uses an opt-out class action to bind copyright owners (including the owners of orphan works) to future uses of their books by a single defendant. This statement fuses class action, copyright, and antitrust concerns, as well as a few others. It shows that the settlement is, at heart, a vast concentration of power in Google’s hands, for good or for ill. The settlement is a classcopytrustliphant, and we must strive to see it all at once, in its entirety, in all its majestic and terrifying glory.
Check back soon for the finalized version, which I’ll post as soon as available.