The U.S. Department of Justice has filed a statement of interest in the Google Book Settlement case. As James Grimmelmann notes, it addresses mainly two issues: (1) competition and (2) the adequacy of the class representatives.
It is worth noting that the DOJ brief clearly recognizes the difficulty that the orphan works problem presents to both sides of the equation. On the one hand, the Settlement provides access to many out-of-print works that may, in fact, be orphaned and thus essentially impossible to license without some kind of massive settlement or legislative efforts. This weighs heavily in favor of approval and the pro-access benefits that would flow from it. On the other hand, it is exactly this inaccessibility that raises the class representative concern. How can a group of plaintiffs and their lawyers represent people who are impossible to find? This raises notice concerns and potential objections to approval.
In light of this and other concerns, the DOJ proposes something of a wait-and-see approach to the Settlement. Wait and see what the parties say in response to these concerns and then if they do not go far enough, reject the Settlement and force them to modify it.
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