The Google Book Settlement
My Law and Technology class is looking at the proposed Google Book Settlement this week. This is the first time that I have focused on that problem, aside from reading posts about it by my co-bloggers, of course! A decision on approving the class action settlement is still pending in the District Court, and I’m not in a position to assess the proposal’s merits. But I can say something about the process involved.
The effort to create a comprehensive digital library is a classic example of a mismatch between ends and means. Most people agree that having every book scanned and available to researchers online would be great. The difficulty is that there is no way to accomplish this under existing law. Congress could overcome that obstacle by passing a new statute that modified copyrights still in force (and either made Google or the Library of Congress the repository for the digital scans) but that probably won’t happen due to a lack of interest. Since the copyright statutes are clear that affirmative permission must generally be obtained from a rights owner, which would be prohibitively expensive from a transaction cost perspective, courts are hard-pressed to use their common-law creativity to develop a compromise. (Yes, they could invoke fair use, which is plausible given the opacity of that doctrine, but given the penalties for copyright infringement that would force Google to take a risk that it evidently chose not to take.) The use of the class action mechanism is a clever attempt to evade the statutory requirements, but there are serious doubts about whether this is acceptable.
As a Torts teacher, I’m struck by the parallel to the DES cases from thirty years ago. In that situation there was broad agreement that something should be done to compensate the injured children of mothers who took DES. Traditional notions of but-for cause, though, barred recovery. Congress could have imposed a solution (and that might have been the best approach), but nothing was done. So many courts just abandoned strict but-for cause and developed a market-share theory to assess liability. That was reasonable (no matter what you think about its merits) because there was no statute involved. The Google project cannot be so easily accommodated.