Putting on my proceduralist hat for a moment, there is a very substantial problem with class certification. The complaint defines the class as follows: "The Class is initially defined as all persons or entities that hold the copyright to a literary work that is contained in the library of the University of Michigan." That class includes many authors who would be injured if the plaintiffs were to prevail--including, for example, me! I am member of the plaintiff class--owning the copyright to at least three or four dozen works in the University of Michican library. I have a very strong objective interest in Google Print succeeding--because as a scholar, I benefit from the dissemination of my works and because reaching agreement with Google will be costly to me and Google, essentially killing the project. A substantial intraclass conflict of interest destroys "adequacy of representation," making class certification inappropriate, both under the federal rules of civil procedure and under the due process clause of the fifth amendment of the U.S. Constitution. Opt out is not a solution--because that would create an affirmative duty to monitor the litigation and opt out (in order to preserve a constitutional right), and the Supreme Court has made it clear that no such duty should be created in a number of cases, including Phillips Petroleum v. Shutts. Pro-bono representation for intervenors opposing certification, anyone?
(PS: I have a book under copyright at the U of Michigan library and would gladly join a group of intervenors in opposing class certification. The message for authors who object to Google Library, translated out of legalese: speak for yourselves.)
Posted by
Peter Suber at 9/30/2005 09:58:00 AM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
