ConclusionThe starting point for all of this analysis has been that Google and the copyright owners are asking a federal court to put the United States’s judicial power behind a document they have presented to it. The court’s consent should not be given lightly; the settlement should be approved only when the court is satisfied that it really will serve the interests of all parties, including the public. I have tried to offer general principles to think through what the public interest requires, along with specific, realistic recommendations to implement those principles.
At the same time, this is not a sentencing hearing or a legislative chamber. The court is not in a position to rewire Google and the book industry to right all wrongs therein, nor should it try. Google’s other ventures are not on the table, nor are the many other problems bedeviling copyright law. I have tried to offer recommendations tailored to the specific question the court is facing: should it use its power to bind absent class members and approve this settlement?
Thus, I hope that my principles and recommendations all have two things in common. Each takes off from some issue specifically raised by the proposed settlement, some way in which approving the settlement could cause trouble down the line. Each then offers a change to head off that trouble, a change more or less narrowly tailored to the issue it confronts.
How do we get there from here? These concerns need to be placed before the court. Different recommendations can appropriately be raised by different parties. The Department of Justice,and at least and one of Google’s potential competitors in book scanning (Microsoft, which has previously had a book-scanning project, is a natural choice) should move to intervene to raise the antitrust concerns. The FTC should move to intervene to raise the consumer-protection issues. And some unnamed members of the author class should object to the settlement unless it is modified to take account of the remaining issues. I believe that all of the recommendations I make can legitimately be suggested to the court on one or more of these bases, and that the court’s mandate to consider the public interest in a settlement gives it the power to condition its approval of the settlement on any or all of them.
My goals here are pragmatic. I am not proposing to take public control of the Book Search project. In comparison with the institutional reconfiguration of book copyright law that the settlement would enact, these tweaks are all quite minor. Nor am I proposing to leave Book Search entirely alone; the parties gave up on that possibility when they asked the court to approve this sweeping class-action settlement.
I hope that these recommendations will prove equally appealing to those who think that Google can do no evil and those who think it does only evil. Perhaps they will prove equally frustrating. The settlement is good as it stands, but it could stand to be better. These recommendations will not make the settlement perfect, but I believe they will not make it worse.
Summary of principles and recommendations (hyperlinks take you back to the section of the document that discusses them)
* P0: The settlement should be approved
o R0: Approve the settlement.
* P1: The Registry poses an antitrust problem
o R1: Put library and reader representatives on the Registry’s board.
o R2: Require the Registry to sign an antitrust consent decree.
o R3: Give future authors and publishers the same deal as current ones.
* P2 If it didn’t already, Google poses an antitrust problem
o R4: Strike the most-favored-nations clause.
o R5: Allow Google’s competitors to offer the same services the settlement allows Google to offer, with the same obligations.
o R6: Authorize the Registry to negotiate on copyright owners’ behalf with Google’s competitors.
* P3: Enforce reasonable consumer-protection standards
o R7: Prohibit Google from price discriminating in individual book sales.
o R8: Insert strict guarantees of reader privacy.
o R9: Protect readers from being asked to waive their rights as a condition of access.
* P4: Make the public goods generated by the project truly public
o R10: Require that Google’s database of in-print/out-of-print information be made public.
o R11: Require that the Registry’s database of copyright owner information be made public.
o R12: Require the use of standard APIs, open data formats, and (for metadata) unrestricted access.
* P5: Require accountability and transparency
o R13: Require that Google inform the public when it excludes a book for editorial reasons.
o R14: Tighten up the definition of “non-editorial reasons” for excluding a book.
o R15: Allow any institution ready, willing, and able to participate in scanning books to do so.
Wow. This is a big, detailed analysis. Please read the whole thing at James' site. It's pretty impressive and makes it clear that this settlement is thorny.
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