Fairness Hearing in the Google Book Search

By Randal Picker

Posted on February 16, 2010


On Thursday, a federal district court in New York will conduct the fairness hearing in the Google Book Search class-action case (GBS). All of the filings are in --hundreds of them-- and we are now fully ready to hear from Judge Denny Chin. What should we be looking for?

There are a staggering number of objections to the amended settlement agreement. These range from antitrust concerns raised by the Department of Justice to privacy issues, to how foreign authors and works are treated, and on and on. But the central issue in the case is the scope of the class-action power in copyright. The lawsuits are on the whole irrelevant for public domain works --anyone can use those, including Google-- and for works where copyright holders can be identified and negotiated with.

The genius-or evilness-of the settlement agreement has always been precisely in the way in which it would enable the use of orphan works. These are in-copyright works where it is somewhere between very expensive to impossible to identify and track down the copyright holder. Absent fair use, copyright requires consent, but the framing of the GBS lawsuits has flipped that through the device of the opt-out class action. Copyright holders have to say no directly to be excluded from the settlement and that means that the orphan works are in default.

This is the issue to focus on Thursday. Whether Judge Chin sees a broad power or a narrow power for copyright class actions will determine the path forward. If he believes that the opt-out structure is inconsistent with copyright's fundamental premise of consent, the orphan works will drop from the settlement and be left sitting on the sidelines waiting for congressional action. But if he believes otherwise, while there are many other objections to the settlement, then a huge hurdle to the current form of the settlement will have been overcome.

What Judge Chin thinks about this is the key issue for Thursday.


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