Testimony by the Register of Copyrights last week expressed concern that the Google Books settlement improperly wades into matters that are the domain of Congress and would impair congressional efforts to enact orphan works legislation. I certainly agree that the Google Books settlement goes much farther than a typical class action settlement. It uses the class action mechanism to achieve unusually broad goals -- in particular, the creation of what amounts to a kind of collective license. In light of that breadth, the settlement warrants the extensive scrutiny it has been getting. And yes, in an ideal world, Congress would take up the matter and provide a generally applicable (rather than Google-specific) path to creating the online equivalent of a comprehensive library.
But it seems odd to characterize the resulting license-like arrangement as "compulsory," as the Register of Copyrights did in the testimony, when rightsholders remain free to opt out (or, for that matter, to exercise more fine-grained control over what uses Google will or will not be allowed to make of their works). Whatever your view on how appropriate or inappropriate it may be to allow works to be included on an opt-out rather than an opt-in basis, participation is hardly "compulsory" within the normal meaning of that word.
I also see little reason to conclude that the settlement will interfere with Congress's effort to craft orphan works legislation. The orphan works bill and the Google Books settlement address fundamentally different questions.
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