Australians, with a tradition of statutory licensing and collective IPR administration, may find that settlement less threatening than some US copyright analysts.
Grimmelmann comments that
The genius - some would say the evil genius - of the proposed Google Books settlement is the way it fuses legal categories. The settlement raises important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement is more than the sum of the individual issues it raises. These “issues” are, really just different ways of describing a single, overriding issue of law and policy - a new way to concentrate an intellectual property industry.He concludes that -
In this essay, I argue for the critical importance of seeing the settlement all at once, rather than as a list of independent legal issues. After a brief overview of the settlement and its history (Part I), I describe some of the more significant issues raised by objectors to the settlement, focusing on the trio of class action, copyright, and antitrust law (Part II). The settlement’s proponents have responded with colorable defenses to every one of these objections. My point in this Part is not to enter these important debates on one side or the other, but rather to show that the hunt to characterize the settlement has ranged far and wide across the legal landscape.
Truly pinning down the settlement, however, will require tracing the connections between these different legal areas. I argue (Part III) that the central truth of the settlement is that it uses an opt-out class action to bind copyright owners (including the owners of orphan works) to future uses of their books by a single defendant. This statement fuses class action, copyright, and antitrust concerns, as well as a few others. It shows that the settlement is, at heart, a vast concentration of power in Google’s hands, for good or for ill. The settlement is a classcopytrustliphant, and we must strive to see it all at once, in its entirety, in all its majestic and terrifying glory.
Ultimately, like every other question of concentrated power in the information society, the Authors Guild settlement is also a question about the role of the state. The settlement is a form of collective copyright management, giving Google the right to sell books unless and until their copyright owners object. The class-action settlement uses the coercive power of the state to create and enforce its provisions. But unlike other state-sponsored experiments in information centralization, which at least were established through democratic processes and subject to public oversight, the Google-Registry complex would be the result of a process instigated by a handful of private parties on terms worked out in two years of strictly confidential negotiations. Creating an elephant ex nihilo may be a remarkable feat — but the settlement remains a wild and dangerous beast.
