Author(s): Pamela Samuelson
Abstract: This Article explains the genesis of the Google Book Search (GBS) project and the copyright infringement lawsuit challenging it that the litigants now wish to settle with a comprehensive restructuring of the market for digital books. At first blush, the settlement seems to be a win-win-win, as it will make millions of books more available to the public, result in new streams of revenues for authors and publishers, and give Google a chance to recoup its investment in scanning millions of books. Notwithstanding these benefits, a closer examination of the fine details of the proposed GBS settlement should give academic authors some pause. The interests of academic authors were not adequately represented during the negotiations that yielded the proposed settlement. Especially troublesome are provisions in the proposed settlement are the lack of meaningful constraints on the pricing of institutional subscriptions and the plan for disposing of revenues derived from the commercialization of “orphan” and other unclaimed books. The Article also raises concerns about whether the parties’ professed aspirations for GBS to be a universal digital library are being undermined by their own withdrawals of books from the regime the settlement would establish. Finally, the Article suggests changes that should be made to the proposed settlement to make it fair, reasonable, and adequate to the academic authors whose works make up a substantial proportion of the GBS corpus. Even with these modifications, however, there are serious questions about whether the class defined in the PASA can be certified consistent with Rule 23, whether the settlement is otherwise compliant with Rule 23, whether the settlement is consistent with the antitrust laws, and whether approval of this settlement is an appropriate exercise of judicial power.
Keywords: intellectual property law, cyberlaw, economics of networks, dispute resolution, Berkeley public lawLink: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1553894