UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK THE AUTHORS GUILD, INC.,ASSOCIATION OF AMERICAN PUBLISHERS, INC.,ET AL.,Plaintiffs,v.GOOGLE INC.,Defendant.Case No. 05-cv-08136-DC
MEMORANDUM OF AMICUS CURIAE THE INTERNET ARCHIVEIN OPPOSITION TO SETTLEMENT AGREEMENT
The Internet Archive (“the Archive”) respectfully submits this Memorandum in oppositionto the Settlement Agreement (the “Agreement”) between the plaintiffs and defendant Google Inc.(“Google”) to the extent that the Agreement would apply to members of the asserted class that donot affirmatively elect to participate. For the reasons set out below, we submit that certifying the proposed settlement class would be a violation of rule 23 (b) (3), and an abuse of the class procedure.In particular, the Agreement has been structured to grant Google broad rights to copy,utilize, and distribute millions of “orphan works,” that is, published books the copyrights in which belong to unknown and unidentifiable owners. Most commentators have concluded that theseorphan rights owners would likely constitute a large majority of the proposed class. But there is no practical way to notify these rights owners – many of whom, children and heirs of deceasedauthors, may be unaware that they are rights owners – of the likely impact of the settlement uponthem.