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This Tuesday, Public Knowledge filed a brief asking the court not to approve the proposed Google Book Search settlement as it is currently constructed. The proposed settlement raises significant antitrust and class action procedural concerns. In plain English, these concerns are that the settlement represents an attempt to license a lot of books belonging to people who are unable to protest, set up a system to pay other people for the use of those books, and give a single party the exclusive right to use many of those books indefinitely. Read on for some more detail about our concerns.
But first, let’s be clear: We want online access to all books for everyone. We want a world without orphan works, where one can either find a copyright’s owner and seek to license use of their work, or else that work is available for use by all. We want all books to be made accessible so that the blind can read everything the sighted can. We are happy with Google’s current lawful scanning, indexing, and excerpting of all books, and the ability it provides to locate works which would otherwise lay dormant. We would like to find a way that anyone who wants to can offer the public even more complete access. And we have no doubt that whatever happens, Google will continue to offer searches of all books, offer full, accessible access to the books it has licensed, and find ways to locate as many rightsholders as possible to obtain more licenses.
But access through a single party is not true access: What we do not want is for books to be made available only through a single company that has, through judicial gymnastics, obtained the only possible license to those works. What we don’t want is a system where the books of absent authors are being sold and the unclaimed proceeds are going to those who should be finding those authors in the first place.
The primary problem centers around the opt-out nature of the settlement and the inclusion of an unknown, but likely significant number of orphan works in the proposed settlement. Orphan works are those works whose owners are either impossible to locate or no longer exist at all, usually because a deceased author’s beneficiaries were not notified of their rights, a copyright owner has not updated the registration, a transfer of ownership was not properly recorded, or the author died without heirs. In most cases, no one will use these orphan works because of the remote possibility that an owner will appear and sue for the extensive statutory damages offered by current copyright law – at present, up to $150,000 per work for willful infringement. Under the terms of the settlement, Google is licensed to use these literary works, and becomes the only entity insulated from these damages if they offer the public access to them.
Now, if the parties were to set up a registry, open to all and with proper competitive safeguards, where rightsholders could register their interests and license the use of their works, we would applaud. Such an entity could be helpful in the fight to open access to creative works and to make progress towards that ideal world without any orphan works. But the proposed settlement goes beyond this, and licenses the rights of anyone who has not shown up and said “no,” whether those people are aware of their rights and easy to find or not. Google gets the right to sell all of those books, while no one else does. The only way for anyone else to get those rights would be to take on the likely impossible task of 1) getting sued for copyright infringement by a similar group of plaintiffs and 2) negotiate a comparable class action settlement. Even if such a feat were possible, it would likely appear collusive to a court in light of the current settlement.
The Conflict of Interest
Both in the suit and at the proposed Books Rights Registry, the interests of anyone who does not opt-out (including orphan rightsholders, who cannot) are ostensibly represented by the Authors Guild, the American Association of Publishers, and a few named authors. However, these very same people will receive revenues from the sale of access to those orphan works. In other words, the registry and those who register with it will be paid for the use of works for which they have not found the owners. Not only does this cast doubt on whether these parties can adequately represent the interests of authors, it also produces the wrong incentives for a registry that is ostensibly supposed to help locate rightsholders. The registry should benefit from finding authors and rightsholders, not from ignoring them.
The Class Action Problem
A third problem we address in the brief is the manner in which the proposed settlement attempts to license uses of books which Google has never made. Up until now, Google has been scanning, indexing, and posting short excerpts of books – activities that we would say are all already lawful, fair uses of copyrighted works. But under the settlement, they would get the right to do something entirely new – sell individual full books and subscriptions to all the books in the library.
This runs afoul of the basic purpose of class actions, which is to help aggregate small harms so that there is enough incentive to file a lawsuit and recover damages for those specific harms. It is not to be a tool to enable the mass licensing of rights which were never violated in the first place and where was not sufficient incentive for the owners to license those rights individually. Here, the aggregate small "harms" are allegedly caused by the scanning, indexing, and excerpting of books, while the proposed remedy is licensing the sale and full display of books -- all for rights belonging to people who are not present. There is a reason class action law is not structured to allow this kind of settlement.
Allowing such an expansive view of class action law could have troubling consequences. Imagine if YouTube could be sued by a few movie studios for posting movie trailers, but ended up licensing the exclusive rights to post any full movie belonging to anyone who failed to show up and ask them not to? What if a company that wanted to use potentially dangerous materials in houses was sued for their use of one chemical, but licensed the right to use other materials in future houses, freeing them of liability towards anyone who didn’t opt-out? There is a reason that class action law is not structured to allow this kind of settlement.
This morning, at the House Judiciary Committee hearing, Google announced that they intend to allow other resellers to “sell access to” orphan works that Google licenses through the settlement. While having this service available is certainly better than not having it, it does not solve the underlying problems. As the only entity licensed to offer those works, Google will become a gatekeeper, providing and defining the only ways to use those books and deriving revenue from access to those books, even when that access is facilitated by a competitor.
In one fell swoop, Google and a small set of authors and publishers stand to create a new market for unclaimed books and to dominate that new market because the law prevents anyone else from effectively joining it. All parties to the lawsuit stand to gain from the judicial licensing of the rights of absent parties to a single entity. This misuse of class action law does not truly advance the goal of broad, open access to the world's knowledge and creative works, and the settlement should not be approved as it stands today. Regardless of what happens with the settlement, Public Knowledge remains committed to working towards a legislative solution that promotes balance in copyright, creates a level playing field and provides the public with greater access to knowledge.