A blog on intellectual property law carries a burden of commenting on compelling IP policy issues of the day, and the pending settlement of the copyright infringement lawsuit over Google Book Search is about as compelling as it gets. I’ve read only a smattering of blog commentary on the proposal, but Neil Netanel at Balkinization and Siva Vaidhyanathan at The Googlization of Everything have particularly good, thoughtful analysis. That is no surprise in either case.
I agree with comments that the “rights registry” aspect of the proposal is its most innovative and potentially problematic feature. There are serious antitrust questions to be asked and answered here, both as to the operation of what may amount to a new collective rights organization and as to the impact of the settlement and its structure on Google’s market position in online book search and content delivery. Has Google backed away from an interesting and socially constructive fair use fight in order to secure market power for itself? I wrote early on that I would be disappointed if Google didn’t see the case through to judgment, and at one level, yes, I am disappointed.
But there is a big silver lining for me. The proposal offers a new and larger set of questions, questions that have surrounded Google generally for some time but that the proposal puts into more concrete focus: Are we seeing the early stages of the beginning of the end of copyright law as we know it? The “standard” account of copyright, if such a thing still exists, posits a statutory allocation of interests between authors and readers, followed by institutional arrangements in specific contexts (fair use, voluntary licensing, collective rights management, compulsory licenses) to tweak that allocation at the margin, where problems arise. It has been my sense for some time that in many information policy debates, the default statutory arrangement no longer commands automatic attention as the presumptive center of the copyright universe. Institutional and disciplinary interests and arrangements of various sorts (technical architectures, commercial enterprises, new institutions such as open source licensing and Creative Commons) have not displaced the statute entirely, but instead have begun to push the statute to a place where it negotiates for attention as a normative landmark. Fighting over the scope of section 106 (the copyright owner’s exclusive rights) and section 107 (fair use) sometimes seems very 20th century. I suspect that the Google Book Search settlement will reinforce and perhaps accelerate that trend.
If I’m right, then it should be obvious that the trend is problematic, if not outright troubling, for not one but at least two big reasons. The “easy” reason is that the trend up-ends our common expectations about the functional and cultural meaning of public authority. There are a lot of standard doctrinal buttons to push to pull the reins back on pluralistic innovation; antitrust law is just one of those. The more challenging reason is that law and society lack any generally accepted criteria for evaluating the legitimacy of the kind of pluralistic environment that I’m trying to describe. My expectation is that the doctrinal buttons will fall considerably short of putting the brakes on the emergence of that environment. It will be interesting to see what happens . . . next.