Thursday, November 05, 2009

What to Look for in Google Books Settlement 2.0

Kenneth Crews, director of the Copyright Advisory Office at Columbia University Libraries/Information Services, has a useful scorecard of bullet points we should be reading closely in the revised Google Books settlement. Settlement 2.0 is scheduled for submission shortly to U.S. District Court Judge Denny Chin. See Crews' blog post "Getting Ready for November 9,"

And while you're at it, check out Crews' September 21 post, "Justice and Google Books: First Thoughts about the Government's Brief,"

My own perspective has fewer specifics and more cynicism. I am focused on the money quote from the Justice Department's intervening "statement of interest":

As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.

Ah yes. A threshold matter. Public, not merely private, concern. The kind of policy change implemented through llegislation, not through a private judicial settlement.

It seems to me impossible to satisfy this standard in a few frenetic weeks of renegotiation -- most significantly, renegotiation by the private settlement parties themselves.

If Settlement 2.0 is a tweak rather than an overhaul, and the government either endorses it or doesn't raise a peep this time, then the initial exercise will have accomplished little, except possibly a play to the grandstands by the Antitrust Division. I hope that doesn't happen.


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