Last month Judge Chin denied the proposed Google Books Settlement (the Amended Settlement Agreement, or ASA). While I’m pleased with the outcome, I’m troubled with some aspects of the opinion.
Setting aside the issues of adequacy of representation, notice, privacy, and whether a class action settlement should be used to establish future and ongoing arrangements, etc, I’m pleased with the outcome because in my view, the main problem with the ASA was its anti-competitive outcomes. The forward-looking element of the ASA consisted of two separate parts: first, it created what is, effectively, a new Collective Rights Organization for works whose copyright owners are known and locatable (I’ll call them the “locatables”), aka The Book Rights Registry (“the Registry”), then it offered a solution to the orphan books problem (books whose copyright owners are unknown or unlocatable). The first part part involved a problematic solution to to a problem that does not exist. The second part, however, involved a solution, albeit flawed, to a real problem. Both aspects were subject to an opt-out rule, namely they would not apply to copyright owners who actively opt-out of the arrangement.