Library Organizations To File Amicus Brief in Google Book Search Settlement

Andrew Albanese -- Library Journal, 2/26/2009

• May be only formal voice for libraries
• Settlement could shape future market for books
• Issues include access, privacy, and intellectual freedom

The American Library Association (ALA), the Association of Research Libraries (ARL), and the Association of College and Research Libraries (ACRL) said this week they will file an amicus brief pertaining to the pending Google Book Search settlement. ARL associate executive director Prue Adler told the LJ Academic Newswire the brief would be written by attorney Jonathan Band, author of the Guide for the Perplexed: Libraries and the Google Library Project Settlement, and would amplify for the court concerns library leaders voiced at recent meeting in Washington, DC.

The decision to file an amicus brief from the library community comes after significant discussion among library leaders. Perhaps, above all, it reveals the uneasy position libraries find themselves in as the Google settlement hurtles forward. Despite the potential implications for libraries and the public, the blunt instrument of an amicus brief may be the only formal voice libraries now have in the wide-ranging final settlement, one that could very well shape the future market for access to books.

In a statement issued after last week’s meeting, library leaders said their concerns revolved around five broad themes: access, privacy, intellectual freedom, equitable treatment, and terms of use. Those wishing to object to the settlement face a May 5, 2009, deadline, though Adler told the Newswire the library community’s amicus will be filed before that date.

Only option?
Technically, the upcoming settlement approval hearing is intended to air objections from members of the class, in other words, copyright owners, said James Grimmelman, a professor of law at New York University, who has written extensively on the settlement. 

Since libraries are not class members, he told the LJ Academic Newswire, filing an objection isn’t “necessarily the right way to raise the issues [libraries] care about.” Adler, meanwhile, told the LJ Academic Newswire that the library community will not object to or urge rejection of the settlement, but would file a thoughtful brief that urges the court to address library concerns.

In one sense, filing an amicus brief in a class action approval hearing is “just a formalized form of commenting,” Grimmelman noted. Hundreds of comments may be filed in the settlement process, and the judge also has unilateral discretion as to what weight, if any, to give to amicus briefs. Grimmelman, however, suggested that an amicus brief from the library community would very likely merit the serious consideration of both the court and the public. 

“I would think that a brief representing such respected and important institutions, with such a huge stake in the outcome would attract the attention of any conscientious judge,” he told the Newswire, and would also serve as “an important way for the public to learn about the issues the settlement raises.”

Not your average amicus 
With so much at stake, this brief is certainly setting up to be more than your average amicus. “I think that’s basically right,” Grimmelman concurred. “Certainly, this settlement approval question is more momentous than most entire lawsuits.”

Grimmelman, despite criticisms of his own, supports approval of the settlement, but recognizes the uneasy position facing libraries, and the value the library community’s input would add to a final deal. “[Libraries will] be key beneficiaries of the settlement, but they also recognize the enormous risk that the settlement could pose to access going forward,” he noted. “That, combined with their public-interest mission, their engagement with huge sections of the population, their historical attentiveness to these issues, and their profound commitment to intellectual freedom, makes them one of the best voices for the public interest that could be imagined here.”  

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