Final KO for GBS?
Since the beginning of this process, criticism of the Google Book Settlement fell roughly into three categories – objectors who viewed the terms of the deal as a complete abrogation of existing coptyright law, those who focused on the role that Google Book Search and the settlement terms played in Google’s continuing abuse of its market dominance in violation of antitrust laws, and those who viewed the settlement as a total misuse of the class action mechanism.
Over the last two years, the most direct blows came from those who objected on antitrust (such as the Department of Justice[link to their brief or a post on our site about it]) and copyright grounds (e.g., the Register of Copyrights, Mary Beth Peters, testifying that GBS would “turn copyright on its head”), but it appears as though the final knockout blow will come from the class action objectors.
Professor James Grimmelman, an avid GBS watcher, noted last month that a recently decided case in the Second Circuit with striking similarities to the GBS all but ends any chance that the GBS will survive. As Professor Grimmelman writes,
“The parallels between the two lawsuits — the Google Books suit and the freelancers’ suit — are striking. Both were brought as putative class actions on behalf of copyright owners against large commercial entities that have allegedly been making infringing copies. Both were brought by a coalition including the Authors Guild, and indeed, they even used the same lawyers. Both morphed into global settlements that would have provided compensation in exchange for allowing the works to stay in the databases — and possibly be used in new ones. And both settlement classes were riven by the same, fatal fault lines.”
The long and short of it is that the proposed class is too divided with too many disparate interests to survive, and so it looks like we may be headed to trial. Stay tuned to see if the GBS can push itself up off the mat, or if it’s really down for the count. We will know much more after the parties meet again with Judge Chin on September 15th.