Randal Picker, Jun 22, 2011
After more than a year of silence, on March 22, 2011, Judge Denny Chin rejected the proposed settlement in the Google book search (“GBS”) case. In the court’s view, the innovative settlement asked more than U.S. class-action rules could deliver and would, in Judge Chin’s words “simply go too far.” The settlement not only resolved possible liability issues for past acts by Google but would also have put in place an extensive forward-looking business arrangement. In the court’s view, Congress was the better forum for establishing the new regime set forth in the settlement agreement. The court did suggest a path forward but one that would undermine many of the potential benefits of GBS.
The rejection of the settlement (known formally as the Amended Settlement Agreement or “ASA’) means that we are at a point of rebooting how we design our digital library future. There were many criticisms of GBS and the settlement but perhaps chief among those was the risk that approval of the settlement would have locked in a single approach to digital libraries. Google would have received unique access to the so-called orphan works and that would have provided it what may have been a decisive advantage against digital library competitors, both private and public. As we move forward on the orphan works, we need to do so with two principles in mind. First, we need to enable broad competing uses of the orphan works while, to the greatest extent possible, respecting the rights of the orphan works holders. Second, we should not repeat the mistake of the GBS settlement by somehow tilting the table in favor of digital library monopoly, either public or private.
We should want to foster a rich digital library ecosystem. GBS makes clear that we can have large-scale private digital libraries. That is an important development and one that we should seek to enable. If we create use rights for copyrighted works for digital libraries, we should be sure to make those privileges available to both public digital libraries and private digital libraries such as GBS and its successors. Our existing statutory safe harbors for libraries favor noncommercial libraries and archives. The emergence of GBS suggests that that is too narrow a conception of what libraries can be in the digital age and we need a statutory scheme that supports that.