Catching Up on the Google Books Settlement

New York Law School's James Grimmelmann, via his Laboratorium blog, is keeping up on the varied argument regarding the pending Google Books Settlement. He writes:

Einer Elhauge's Why the Google Books Settlement Is Procompetitive, previously mentioned on this site, has been published in the Journal of Legal Analysis. The JLA is a peer-reviewed open-access journal with high editorial standards; it's a good home for this sort of work. Particularly after the JLA's editing, Elhauge's paper remains the definitive pro-settlement antitrust analysis, better and more detailed than the parties' own submissions to the court.

He also has uploaded a draft version of his latest paper, The Elephantine Google Books Settlement. Here's the abstract:

The genius?some would say the evil genius?of the proposed Google Books settlement is the way it fuses legal categories. The settlement raises important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement is more than the sum of the individual issues it raises. These "issues" are, really just different ways of describing a single, overriding issue of law and policy-a new way to concentrate an intellectual property industry.

...I will argue (Part III) that the central truth of the settlement is that it uses an opt-out class action to bind copyright owners (including the owners of orphan works) to future uses of their books by a single defendant. This statement fuses class action, copyright, and antitrust concerns, as well as a few others. It shows that the settlement is, at heart, a vast concentration of power in Google?s hands, for good or for ill. The settlement is a classcopytrustliphant, and we must strive to see it all at once, in its entirety, in all its majestic and terrifying glory.

Grimmelmann's summary downplays somewhat his level of alarm. His conclusion:

Both of these views?that there should be no sellers of unclaimed works and that there should be any number?make simple, intuitive sense... From the perspective of concentrated power, however, the actual proposed Authors Guild settlement, elegant though it may be, may also actually be worse than either extreme. A world with no sellers of orphan books and a world where anyone can sell them are both still primarily decentralized. The settlement, however, would create one seller of orphan books, pulling together all of the necessary rights into a single company's hands. This "compromise" between authors' rights and the public's access to books just so happens to also hand Google a dominant position in selling older books.

...But unlike other state-sponsored experiments in information centralization, which at least were established through democratic processes and subject to public oversight, the Google-Registry complex would be the result of a process instigated by a handful of private parties on terms worked out in two years of strictly confidential negotiations. Creating an elephant ex nihilo may be a remarkable feat but the settlement remains a wild and dangerous beast.