Pamela Samuelson has posted an important new article draft, forthcoming in the Wisconsin Law Reivew, The Google Book Settlement as Copyright Reform. She looks at how copyright law creates problems the settlement tries to solve, and at the institutional issues created by using class-action procedure to fix those substantive problems. Samuelson’s long and distinguished history of engagement with copyright reform efforts (see also) gives this paper an unusually synoptic view of the copyright issues raised by the lawsuit and settlement. It effectively links the niceties of copyright doctrine to the deep questions of policy. This paper does for the copyright conversation what Einer Elhauge’s paper did for the antitrust one; agree or disagree, there is now a gold standard of sophisticated analysis.
Here is the abstract:
An intriguing way to view the proposed settlement of the copyright litigation over the Google Book Search (GBS) Project is as a mechanism through which to achieve copyright reform that Congress has not yet and may never be willing to do. The settlement would, in effect, give Google a compulsory license to commercialize millions of out-of-print books, including those that are “orphans” (that is, books whose rights holders cannot readily be located), establish a revenue-sharing arrangement as to these books, authorize the creation of an institutional subscription database that would be licensed to libraries and other entities, resolve disputes between authors and publishers over who owns copyrights in electronic versions of their books, provide a safe harbor for Google for any mistakes it might make in good faith as to whether books are in the public domain or in-copyright, and immunize libraries from secondary liability for providing books to Google for GBS, among other things.
This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.
As Lawrence Solum would say, “Highly recommended.”