ACS is pleased to
distribute an Issue Brief by James
Grimmelmann, Associate Professor of Law, New York Law School, entitled The Google Book Search Settlement: Ends,
Means, and the Future of Books.  Drawing upon his experience as a lawyer,
technologist, and a member of New York Law School's Institute for Information
Law and Policy, Professor Grimmelmann discusses some of the public interest
issues that arise from the pending settlement (still subject to court approval)
of a class action lawsuit involving Google Books.  The background, as explained by the author,
is as follows:

For the past four
years, Google has been systematically making digital copies of books in the
collections of many major university libraries. 
It made the digital copies searchable through its web site--you couldn't
read the books, but you could at least find out where the phrase you're looking
for appears within them.  This outraged
copyright owners, who filed a class action lawsuit to make Google stop.  Then, last fall, the parties to this large
class action announced an even larger settlement: one that would give Google a
license not only to scan books, but also to sell them.

The author analyzes
the lawsuit and settlement, examining what he perceives as the potential
benefits of the settlement--a unprecedented electronic backlist of American arts
and letters, a substantial new revenue stream for authors and publishers, and a
comprehensive new information resource for libraries--as well as its potential
harms, including anti-competitive monopoly concerns and intellectual property
concerns relating to orphan works. 
Professor Grimmelmann pays particular attention to the issues
surrounding orphan works, "books under copyright but whose copyright owners
cannot be found," describing how the settlement would authorize Google to start
selling orphan works.  Following his
discussion of the settlement's substantive issues, Professor Grimmelmann
discusses process concerns, arguing that as an issue that "substantially
affects the interests of large swathes of the public," orphan works copyright
issues are better addressed through legislation, not class action litigation.  Professor Grimmelmann explains his view by
stating:

The settlement tackles the orphan works problem, but through the
judicial process.  Laundering orphan works
legislation through a class action lawsuit is both a brilliant response to
legislative inaction and a dangerous use of the judicial power.  Many of the public interest safeguards that
would have been present in the political arena are attenuated in a seemingly
private lawsuit; the lack of such safeguards is evident in the terms of the
resulting settlement.  The solution is to
reinsert these missing public interest protections into the settlement.