Google-itis: Beware of Class Action Settlements

[Commentary] In mid-December the Google Books Project suffered another blow when a Paris Court rejected the fair use defence to a suit of copyright infringement. The French courts were right on the money. The easy fair use cases involve literary criticism where it would be impolitic, to say the least, to get the consent of authors before reviewing their book. The harder fair use cases involve copying for limited purposes, which is generally allowed only where there is no organized market, present or future, that can allow for the licence of these use rights. The French makes good sense because a successful market transaction can supply something that a fair use doctrine negates: financial compensation for authors whose works are included in the Google Books Project.

As yet, it is unclear what impact, if any, the French decision will have on the ongoing settlement proceedings in the class action lawsuit for copyright infringement that the Authors Guild filed on behalf of its authors and publishers on September 5, 2005. but there is a simple way out of this morass. Judge Shin should reject this settlement. In so doing he would strengthen the voluntary markets that would hasten the objectives of the Google Books Project. First, the project can work well even if all rights holders do not sign up for the parade. Second, Google does not need this transformative settlement to reach individual authors.

[Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law, The University of Chicago; the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; and a visiting law professor at New York University Law School.]