Constitutional Law

Prof. Grimmelmann Examines Proposed Google Book Services Settlement

The expansive class action lawsuit settlement over Google's book-scanning program would serve Google well, but hardly anyone else, says James Grimmelmann in an Issue Brief released by ACS. Grimmelmann, a professor of law at New York Law School's Institute for Information Law and Policy, writes that the settlement, which is before a federal court, would give Google enormous power over books whose copyright owners can no longer be found (called 'orphan works').

He writes:

Google's book services will be comprehensive on a previously unimaginable scale; the settlement ensures that copyright claims by orphan works owners will not threaten that comprehensiveness.

 

Indeed, just as Google would have argued the intractability of the orphan works problem in making a fair use case for scanning, that self-same intractability provides the best justification for the comprehensive book-sales programs that the settlement establishes. The orphans are books that are not being made available to the buying public and are not benefiting their copyright owners. The class action gives Google the green light to start making them available again, while collecting money on behalf of copyright owners. That is not an arrangement that would be possible through any kind of voluntary dealing.

Grimmelmann adds that the legal fracas over Google's book services endeavor reveals that new legislation is needed regarding copyright law, not court action.

The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.

Grimmelmann's Issue Brief, 'The Google Book Search Settlement: Ends, Means, and the Future of Books,' is available here.

Full post as published by ACS Blog on April 17, 2009 (boomark / email).