Google Book Search, Class Actions and the Separation of Powers

In response to yesterday's post making the case against the Google Book Search Deal, I had spirited conversation with Google policy analyst Derek Slater, who helped me understand Google's perspective on the case and some of the issues I discussed.

He raised a reasonable objection to my claim that "the settlement would give Google carte blanche to use these orphan works without making a serious effort to contact their owners." He points out that the settlement stipulates that the Book Rights Registry will make an effort to locate orphan works holders and hold funds in escrow for five years to be paid to any orphan work holders who surface. Describing this as "carte blanche" was probably too strong. I think my basic point—that Google won't be required to conduct the kind of "diligent search" for rightsholders before using a work—is still valid, but I could have made this point more carefully.

He also quibbled with my contention that the settlement would confer permanent competitive advantages on Google. I think I'm on firmer ground here; although the settlement does extend to Google's competitors some of the advantages Google itself enjoys, the fact remains that Google would receive broad immunity from copyright lawsuits that would not be extended to Google's competitors.

Much of our conversation focused on how various parties would be helped or harmed by the settlement. Derek explained that approving the settlement would have some worthwhile consequences: the orphan works problem would be mitigated, libraries and universities would get access to a vast database of books online, and consumers would continue to enjoy access the great product that is Google Book Search. He pointed to various provisions that give third parties access to some of the same licensing opportunities available to Google itself. And he may be right, for example, that most orphan works holders would be made better off by the settlement, since the deal would generate extra income that would be escrowed for them should they subsequently surface.

The problem is that I don't really know how the various class members might be affected by the settlement. And more importantly, I don't think the judge does either. The settlement is extremely complex, and it will have too many effects on too many parties for anyone to fully evaluate all of them. In the last month, we've seen literally dozens of parties file comments with the courts in support or opposition to the settlement. Indeed, the volume of the comment is so large that I suspect the judge is beginning to feel overwhelmed. And there are doubtless many other parties that would object to the settlement but lack the knowledge or legal savvy to submit comments.

The judicial process works well precisely because it typically makes decisions on a case-by-case basis, fitting the circumstances of each case to an evolving body of precedent. This incremental approach tends to produce a body of law that adapts well to changing circumstances while giving all affected parties the opportunity to have their interests represented. Because different cases are heard by different judges, the mistakes of any one judge won't unduly influence the direction of the law's evolution. The class mechanism tends to undermine these beneficial properties of our legal system. Rather than many cases being decided by many judges over a period of years, a class action lawsuit asks a single judge to render justice for thousands of plaintiffs whose individual interests can't possibly all be represented by the attorneys presenting arguments to the judge. Especially when the proposed class is as large and heterogeneous as the plaintiffs in the Google Book Search case, the class action mechanism demands that the judge to balance the competing interests of thousands of different parties, many of whom have divergent interests. No single person could possibly weigh all the competing arguments in a systematic fashion.

Fortunately, we have an institution with the infrastructure and accountability to deal with precisely this kind of situation: the legislative branch. I think many people find the Google Book Search settlement appealing precisely because it provides an opportunity to bypass the stalemate on Capitol Hill and achieve some de facto changes in the copyright regime that lots of people (including me) regard as desirable. But this perspective misunderstands why the legislative process is so slow and cumbersome. The problem isn't that Congress is taking a simple problem and making it more complicated than it needs to be. The problem is that orphan works reform is a genuinely difficult problem that will affect the rights of many different people. Achieving consensus is genuinely difficult, we want a slow, sprawling, messy process to make sure everyone gets a fair hearing. The Google Book Search deal wouldn't really resolve the complex trade-offs Congress is wrestling with, it would simply put the judiciary's thumb on the scales in favor of those who happen to have the judges ear thanks to the peculiar structure of this lawsuit. This is undoubtedly a faster way to deal with the orphan works problem, but I don't think it's a better one.