Google, Fairness and the Battle of the Books

Abstract

One of the more intriguing expansions of Google has been its aggressive foray into the world of book sales, driven by its goal to index all published knowledge. In 2004 Google announced its plan to digitize millions of books held at major research libraries. This project, now known as Google Book Search, triggered a massive class action litigation. On February 18, 2010, federal district judge Denny Chin held the long-awaited fairness hearing but no ruling has issued thus far. Complicating the outcome of the decision is the elevation of Judge Chin to the Second Circuit Court of Appeals, which occurred in a confirmation hearing held less than a week after the fairness hearing. This update reflects the changes to the proposed settlement in the Amended Settlement Agreement, the recent fairness hearing and this author’s assertion that the class action is fundamentally flawed not because of its provisions but because its provisions will have the de facto effect of amending U.S. copyright laws, circumventing antritrust review, and violating international treaty obligations.These issues are critical to the future of intellectual property policy and international trade. As such, they are not appropriate for determination by a class action lawsuit that has insufficient safeguards or future-looking mechanisms for amendment. As the Department of Justice has recommended, the settlement exceeds the scope of the litigation and should be restricted to the prior copyright violations only. Congress should then be called upon to act to change the methodology under which the public can gain access to orphan works – so that all vendors and the entire public will have the same rights and opportunities.