The Google-Books Settlement: A Lawsuit Ripe for . . . Congress?

[WSJ Law Blog]

The deadlock over the Google books settlement moved a little late last week when Google agreed to relinquish some control over the fate of so-called orphan works. Click here for the Recorder story.

Before we unpack the news, let’s provide a little background.

The Authors Guild and the Association of American Publishers sued Google 2005, claiming the company’s Google Books project — an effort to digitize huge volumes of books and ultimately make them publicly available — violated their copyrights.

The parties then spent two years negotiating a sweeping digital-books settlement. (Click here, here and here for earlier posts about the settlement.)

But the Justice Department raised concerns about the settlement, echoing voices of others who charged the deal was inconsistent with copyright law. Others raised objections on antitrust grounds, alleging it could allow publishers to charge higher prices for their works.

The modification to the settlement, unveiled on Friday, creates an “independent fiduciary” that would oversee the unclaimed works. That fiduciary would be allowed to license the books to third parties, “to the extent permitted by law.”

But not everyone’s happy with the new deal. According to the Recorder piece, the problem, say critics like Sherwin Siy of Public Knowledge, a nonprofit that advocates for digital rights, is that right now it doesn’t seem like such a license would be permitted under the law.

Some are claiming now that the government needs to get involved; that the solution is not one best left to the courts to decide. Siy, for example, suggested that “a legislative solution would allow anyone the access of orphan works,” without making one company the gatekeeper.

“Nobody should get a license to orphans without congressional action,” said Pamela Samuelson, a professor at UC-Berkeley School of Law. “This is a legislative matter — you shouldn’t use a class action for that.”

Others disagree. Paul Aiken, executive director of The Authors Guild, one of the parties to the settlement, said that a class action and not Congress was the best way to clear up the problem.

“You can’t solve this problem without something like a class action,” Aiken said. “We weren’t going to sit around and wait for a legislative solution.”

The case is being overseen by Judge Denny Chin in New York. Google is being represented by Wilson Sonsini.