Some Thoughts on the Google Book Settlement Hearing of February 18, 2010

I’ve said very little about the Google Book Settlement (“GBS”) to date because it is so complex and because is raises so many unanswerable questions. Moreover, at this stage I have no committed convictions on it. In fact, I’m really genuinely agnostic about it.

On the one hand, I love the idea of great celestial digital library in the cloud that will include virtually all useful books, including "orphans", will last forever and provide the greatest possible accessibility at the lowest possible cost while fairly compensating current rights owners. On the other hand, I wonder whether this grand vision is entirely legal under the relevant current domestic and international legal regimes. I’m skeptical about using the class action process of a single country, wherein a handful of brilliant and well intentioned individuals can take upon themselves the mandate arguably to unilaterally, effectively and fundamentally change copyright law in the major English speaking jurisdictions of the world, with French books published in Quebec being included. Moreover, I have serious questions about a settlement that will sweep in Canadian authors and publishers but will deny Canadian users most of the bells, whistles, benefits and access to the resulting library.

There are big questions here that won’t go away easily. Judge Denny Chin is a District Court Judge in the Southern District of New York who has been nominated to the fabled Second Circuit Court of Appeals to replace Judge Sotomayor who was recently appointed to the US Supreme Court. He will have to rule on many complex questions following a fairness hearing today February 18, 2010 dealing with the Amended Settlement Agreement (“ASA”). Judge Chin has dealt with many high profile cases, including that of Bernie Madoff, who he sentenced to a longer than life term of 150 years in jail, leaving no doubt that life means life.

For starters, here is the partial list of documents that Judge Chin will have to consider, most of which were only recently filed. There have, of course, been many more filed before this ASA hearing was set down and for the first hearing.

Here are some of the general questions that various stakeholders have for Judge Chin, followed by some Canadian based questions that he may not have to answer but Canadians need to consider:

General:

1. Is this an appropriate use of the class action process, especially in view of the many prestigious groups, corporations and individuals who have objected to the ASA? In other words, to what extent does the class involved adequately represent affected authors and publishers, not to mention countless other stakeholders, including librarians and scholars?

2. Can a class action settlement go well beyond the original pleadings and, effectively, change the law both for the past and for the future in a way that would otherwise be impossible at this point in time if it were to be attempted in Congress and/or through a treaty?

3. Given the extraordinary complexity of the settlement documentation and the relatively short notice period, can affected authors, publishers and other stakeholders realistically come to informed conclusions?

4. Is it appropriate to use class action litigation to arguably transform the normally “exclusive rights” basis of copyright law, which requires explicit permission, into an opt-out regime, where permission will be given unless specifically refused in writing? The deadline for total “opting out” was January 28, 2010. Google argues that even those who didn't opt out by January 28, 2010 will have plenty of opportunities to exercise control over their works down the line for many purposes - but this will still require further “opt out” or other action.

5. Would the Settlement, if approved, put the United States into contravention of international law with respect to such basic concepts as those of national treatment, mandatory exclusive rights, and the three step test? None other than the Hon. Marybeth Peters, U.S. Register of Copyrights raised the national treatment issue in her testimony to the House Judiciary Committee.

6. What will be the antitrust implications of the ASA, given the dominant or monopoly position that Google will have with respect to several markets that it is creating by virtue of this Settlement, i.e. access to orphan works, and, above all the sole portal to search engine access to the database of tens of millions of books (the great “Library to Last Forever”, as Sergey Brin himself calls it)?

7. What are the implications of views such as this by prominent US IP antitrust lawyer Gary Reback?

8. What are the extraterritorial implications of this agreement, which requires authors of books published in Australia, Canada (including French language books) and the UK (the “foreign publishing countries”) to have opted out by January 28, 2010 or be bound by it? It also covers books published in these countries, even for the countless authors who are not citizens or residents of these foreign publishing countries or the USA. Unlike United States works, there is no requirement for the foreign works to have been registered in the US Copyright Office. Given the practice of simultaneous or near simultaneous publication of countless English language books in the foreign publishing countries, Google will acquire an enormous number of books in their database that would not fit into the necessarily tighter definition of a US work, which requires publication and registration in the USA. Moreover, many French books published in Quebec but originating from anywhere in the world including France would be included.

9. What about the countless past agreements signed between authors and publishers that were silent or at best ambiguous about electronic rights?

10. What about the privacy rights of potential users?

Here are some Canadian-focussed questions, which Judge Chin will not likely answer but others may eventually have to face:

1. Why has the Government of Canada apparently been uninvolved and uninterested in the GBS? There has been no public consultation that I am aware of. France and Germany have become engaged at the official level. On the other hand, Canadian officials who would normally be involved in an issue such as this haven’t been.

2. Where are the several prominent Canadian trade associations and collectives that should have provided some useful specific advice and potentially some representation for Canadian authors, publishers, librarians etc. on these issues?

3. What are the implications of the Google Partner Program, which appears to allow publishers to feed into Google’s database for very extended access the books of many authors, who may have been and still may be unaware of the Program?

4. Why is this shaping up to be a battle between scholarly and other individual authors. ranging from the most obscure to J. K. Rowling herself on the one hand and big corporate publishers on the other? I note that the Canadian Publishers’ Council and the Association of Canadian Publishers (which together represent the big multinational and major Canadian publishers) are recommending approval of the Settlement at the same time that they attempting to intervene to fight “flexible fair dealing” and push back on the CCH v. LSUC decision in the Access Copyright K-12 case currently before the Canadian Federal Court of Appeal. On the other hand, many independent Canadian authors and the Canadian Association of University Teachers (“CAUT”) are opposing the GBS. Naturally, the database will be far more important for innovation and research purposes with respect to scholarly works than, for example, light romance novels (no offence to the fan fiction crowd).

5. Although vast numbers of Canadian published books by thousands of Canadian authors will be drawn into this settlement, most of the bells and whistles of the Google Books database will presumably not be available in Canada with respect to most of the database. This is because Google is necessarily putting up something of a firewall around this database since, even though there may be some extraterritorial aspects to the settlement, the Settlement not surprisingly purports not to affect activities implicating copyright rights in foreign countries outside of the USA.

6. Canadians may wish to read, if nothing else, the submissions of Google itself and the US Department of Justice (which supports the basic goals of the ASA but reiterates that it is still “a bridge too far” and should not be approved as is). Canadians will also want to read the few but important submissions from Canada. As well, there are “must read” submissions from Pam Samuelson and many notable advocacy groups on all sides, and corporate interests, including Microsoft and AT&T.

There is no doubt that Judge Chin will have his hands full with this case, and they eyes of the entire copyright world will be focussed on him. If this case were ever to go to trial, it would likely be a vastly more complex copyright case than anything ever heard anywhere before. Whatever happens after today will most certainly not be a routine rubber stamp judicial approval of a class action settlement.

Judge Chin's ruling will have profound public policy implications not only in the USA but potentially also everywhere else. Whatever Judge Chin decides, he will be expected to provide ample reasons. Despite, or perhaps indeed because of, the importance, complexity and controversy of this matter, I’m willing to predict that we will see a lengthy and detailed judgment from Judge Chin in a few weeks or a few months at the most.

HK