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Law professors and legal experts clashed over copyright, antitrust, and class action concerns at a June 15 roundtable discussion hosted by George Washington University School of Law about the future of the Google Books litigation.
The event, “Can the Google Books Settlement be Fixed? A Roundtable Discussion Among Experts,” included legal scholars as well as lawyers directly involved with the case and former government employees. Participants reacted to a March decision that rejected a proposed settlement in the Google Books case (56 PTD, 3/23/11).
Google has made agreements with several libraries to digitize their collections. Print for Libraries—later renamed Google Book Search—would permit the viewing of only small “snippets” of the works along with links to booksellers. The participating libraries would also be given digital copies of all the works that Google copied to be made available on the libraries' websites.
Google asserted the fair use doctrine as a basis for moving forward without seeking the authorization of copyright holders (209 PTD, 10/29/08). Its ever-growing database currently contains more than 15 million books.
A class action lawsuit by authors and publishers was brought, alleging that Google infringes their copyrights (183 PTD, 09/22/05). In October 2008, Google, authors, and publishers reached a settlement of $125 million to establish a centralized royalty collection organization, to compensate authors of scanned books, and to pay the plaintiffs' legal fees. The settlement also permitted Google to use orphan works, whose copyright owners could not be located.
Judge Denny Chin of the U.S. District Court for the Southern District of New York—who has since been appointed to the U.S. Court of Appeals for the Second Circuit—granted preliminary approval of the proposed settlement in November 2009 (223 PTD, 11/23/09). At a fairness hearing in February 2010, the Department of Justice weighed in on the debate with serious antitrust concerns (32 PTD, 2/19/10).
The court ultimately rejected the settlement on the basis that it exceeded the scope of the litigation and class representation by assigning rights for authors and rights holders not included in the action. It also found that the settlement would limit Congress's ability to legislate copyright law, clashing with foreign copyright policies, or violating antitrust laws (57 PTD, 3/24/11).
Alan B. Morrison, associate dean of law at George Washington University, opened the morning session with an enumeration of the multitude of issues at play in the Google Books case.
“The goal of our program today is to see if there are areas of agreement as to how the settlement goes forward, and how lingering questions from its rejection will be handled,” he said.
He went on to identify individual topics: what is worth preserving from the settlement, the difference between pre- and post-effective date requirements, what an opt-in program would look like, what to do with orphan works, potential for legislation, antitrust concerns, and the public good.
The participants tried to find points of agreement at first, as they addressed the copyright claims. Although Daphne Keller, a lawyer for Google Inc., stuck to her company's position that it has a valid fair use defense, many other panelists remained skeptical.
Charles S. Sims of Proskauer Rose, New York, who has participated in other copyright class action claims, said that the “fair use defense is so implausible and weak, it is not proper for one company to conscript the court system and get a monopoly that would digitize 15 million books.” He noted that the “complaint focused on copying qua copying.”
Orphan works—works without known holders of the copyrights, or whose holders cannot be communicated with—came up frequently in arguments against an opt-out regime, because under such a system there would be no one to come forward and remove the works. Keller focused on the distinct but similar problem of “neglected” works, whose low values do not justify the hours of research required to track down an heir or rights holder.
Marybeth Peters, former register of copyrights, said she believed that orphan works are one area where legislation is the most appropriate solution, but that previous attempts at legislation were “put aside kind of because of the Google Books suit.”
Jule Sigall, former associate register at the U.S. Copyright Office and current associate general counsel for copyright at Microsoft Corp., said that Congress might be the proper venue and that legislation, not litigation, is the answer.
Richard Pierce, a law professor at George Washington University, scoffed at the idea of Congress taking action.
“It ain't gonna happen,” Pierce said, adding that because litigation would come with huge transaction costs, he recommended the parties “get back to the settlement process and not move to that totally impossible venue down the street.” He received a murmur of agreement from other participants.
However, Robert Brauneis, a law professor at George Washington University and event moderator, responded, “There seems to be some pessimism about whether Congress would ever act, but sometimes Congress does act, particularly if stakeholders get together and agree first and ask Congress to bless their agreement.”
“I remain very hopeful that they can step in … and not just on orphan works,” she said. She also added that “we got close” in getting an orphan works bill approved by Congress recently, apparently referring to legislation, H.R. 5889 and S. 2913, introduced but never enacted in 2008.
Sims noted, “It took 13 years for copyright revision. I don't think people have spent 13 years on orphan works.”
Several participants compared the debate of legislation versus litigation efficacy to the one decades ago about liability for ailments caused by asbestos.
Troy A. McKenzie, a law professor at New York University, said that if a settlement were to be approved, Congress would be more likely to take legislative action on orphan works, which was stalled in part as Congress waited for the Google litigation to be resolved.
The discussion heated up when the participants discussed class action requirements. William Cavanaugh, formerly involved with the case through the Department of Justice, Antitrust Division, said “this case is about snippets. Authors can't go out and negotiate your rights for you and broad providers to enter into commercially attractive arrangements, outside class action.”
He said he believed that the settlement was rejected because the “judge found that this settlement does not spring from this complaint.”
Roger Transgrud, a law professor at George Washington, responded that “when the parties are effectively creating an industry, it is entirely reasonable for a district judge to consider the conditions an industry created.” Several panelists agreed that as a fiduciary for the class, it was within the judge's responsibility to consider the interests of third parties who might be affected by the settlement.
“Courts are given broad discretion in cases like regulation of prisons and industries,” according to Randal Picker, a law professor at the University of Chicago.
The discussion frequently returned to antitrust concerns. Cavanaugh said, “Google makes the argument that but for this settlement there is no product.”
Picker saw that argument as an excuse for a monopoly.
“You're not allowed to cartelize at birth,” he said.
Cavanaugh agreed, saying that “They're not achieving this through any technological breakthrough. We can argue that they're achieving this by violation of the Copyright Act. Remember, you have all of the major publishers acting collectively here and that is a concern. You can't act collusively in settling a case.”
Some participants argued for continued litigation of the case. Almost no discovery has occurred since the lawsuit was filed, because settlement negotiations began almost immediately.
However, it would not be a “herculean task to get to trial, and no more difficult than others that get resolved in a year or so,” according to Hadrian Katz of Arnold & Porter, Washington, D.C. “Judge Chin would be a great judge to try it,” he added.
Jonathan Band, who represented the Library Copyright Alliance, an amicus curiae that advocated neither for nor against the settlement, said that for libraries the big issue was Google's creation of a new service, not the number of competitors.
“It is a choice between one and zero. I have absolutely no doubt that 10 years from now you will still have zero,” Band said.
Band criticized the district court's decision, expressing disappointment that the court seemed to have avoided addressing what Band considered the important social and economic implications of Google's project.
However, Katz disagreed, saying, “Judge Chin is probably the most tech-savvy judge in the eastern part of the United States. … He understood every aspect of this issue and addressed every part of the issues. … The judge rejected the settlement because of the orphan issue and he was antagonized by Google's approach to the orphan issue.”
Some questioned the relevance of continuing the current lawsuit, given the pace of technological changes and Google's continual digitizing of books.
“10 years from now paper books will be exactly analogous to vinyl records,” Katz predicted.
Lateef Mtima, a law professor at Howard University, tried to remind participants of a common view that “predominantly it is a copyright case, which historically doesn't sit well with antitrust. Copyright, class action, and antitrust goals won't all be the same.”
Referring to Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)—which held racial segregation in schools to be unconstitutional—as an example of a class-action case that affected unborn people, Mtima said, “Brown was decided with a sense of urgency to fix a society torn apart. You have to start from the premise that copyright has social utility goals. We have to solve the copyright problem first.”
That will be no easy task, he said, pointing out the irony that the participants “are highly-educated IP professors and most of us don't know if we own the rights to our own works.”
Another problem the court had with the settlement, is that “It seems like [the class members] are acting as literary agents in some sense of the word,” according to Morrison.
Cavanaugh responded to him, “Those class representatives don't have broad powers. … The argument you keep hearing is that this is a good deal for authors. Maybe it is and maybe it isn't, but that's outside the point.”
Band suggested that “my experience working in this area makes it seem it is unlikely we can work this out in our lifetimes.”
Other participants in the roundtable discussion included:
• Daniel F. Goldstein of Brown, Goldstein & Levy, Baltimore,
• Michael Guzman of Kellogg, Huber, Hansen, Todd & Evans, Washington, D.C., who represented first the authors and then AT&T Inc., and
• Brian Wolfman, a law professor at Georgetown University.
By Stephanie Latimer and Anandashankar Mazumdar
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