Google Book Search and Contractual Voodoo

Let's say that you have a good idea for an internet application, but it would involve infringing millions of copyrights. You'd like to negotiate a deal, but there are hundreds of thousands of people with whom you'd have to negotiate. So what do you do? 

Here's an idea: Find just one or two agents to represent all the copyright holders with whom you'd like to negotiate. These superagents do not actually get people's permission to represent them ... that would be impractical. Instead, these agents simply declare themselves to be representatives of the copyright holders. Then you and the agents hammer out and sign a contract that binds all of the copyright holders. 

There is, obviously, one big problem with this plan. It is completely preposterous. Contract law does not allow for it. It is elementary that you cannot bind someone to a deal without their consent. 

Yet Google, with their Google Book Search program, is on the verge of accomplishing just such a feat of contractual voodoo. How? Through a proposed settlement agreement of a class-action lawsuit.

If, before launching Book Search, Google had filed a declaratory-judgment action to determine whether they were on solid legal footing, Google's prospects might have been quite meager.

But Google did not do this. Instead, the folks at Google went with a much more promising brute-force approach: Google debuted their service, grew it steadily, and attracted admirers. Having taken command of the status quo, they sat back and waited to be sued. When Google was inevitably hailed into court, it finally had someone across the table with whom it could negotiate. And negotiate it has. The 141-page settlement agreement is the licensing agreement that Google could never have reached otherwise. 

Class actions are a necessity for certain kinds of disputes. And there undoubtedly needs to be a way for all disputes – class-action suits included – to be settled. But this is not a case where what's done is done and the courts must make the best of a bad situation by creating some final resolution to set the matter to rest. Google Book Search is not, for instance, a toxic spill or a cancer cluster that can't be undone. The harm can be stopped immediately. Specifically, if Google Book Search infringes copyrights, Google can pull the plug on it tomorrow. 

So as a settlement agreement, this one strikes me as somewhat fishy. 

I like Google Book Search. I see it as a social good of substantial magnitude. But that doesn't make the settlement agreement wholesome. It calls for careful scrutiny. The final fairness hearing is on October 7, 2009, and objections must be filed by September 4, 2009. I hope the court will get to hear some thoughtful criticism.