I wanted to address and post a couple of links about the future of books and news reporting. How are they related? I think they are both about the transition from print to online format, and they both make me wonder what to do about it.
The first is the court’s rejection of the Google books settlement. If you’re not familiar, the gist is that Google got sued for copyright infringement based on its scanning of books and making snippets available in Google books search. David Post has a nice discussion about the policy concerns that might have driven the rejection. We do agree on one thing: the world would be a better place with services like that proposed in the settlement in place.
That said, to me this rejection was a no-brainer. After all, this was a class action settlement. To allow the settlement to a) grant essentially exclusive licenses, b) grant rights in the face of great opposition from many class members, and c) to grant rights explicitly where class members are known to be unreachable (these are orphan works, after all), I just don’t think it works.
It is perhaps here that I disagree with Professor Post. His take is that backward looking concerns, that the alleged infringer Google should not be granted a license to reproduce orphan works, is that IP is about promotion of progress in the arts, and that this settlement would do that. In theory, I don’t really disagree with that. Indeed, I would argue that Google (or anyone else) copying such works should probably be considered a fair, library type use.
But I do think that if Google wants that right, it has to fight for it, perhaps through a declaratory relief action (ironically, if the works are truly orphan, it’s not clear who Google could sue), or perhaps by actually trying this class action and defending its actions with respect to orphan works. I’m all for that. It’s not like Google doesn’t have the money to pay for a trial. I don’t think, however, that the right vehicle to obtain such rights is a settlement with those rights holders who might have a real infringement claim. I also don’t think that findable authors who might receive a royalty can represent unfindable authors. Perhaps this means that the class is too diverse to be certified, and that there are really multiple classes. Pam Samuelson makes the point, for example, that academic authors are different in kind from other authors.
Thus, I view the court’s statement that Google, as an alleged infringer, should not be rewarded with a license as a matter of equities, not a matter of policy about what should happen. I think the court could live with a decision on the merits that Google can do what it was doing without giving Google more than it was doing. Of course, that was the genius of the proposed settlement, but apparently also its downfall.
On a related note, about a year ago I wrote a blog post that supported the use of the misappropriation (or “hot news”) doctrine. My justification was that it is expensive to gather news, and that fewer and fewer organizations were doing it. My theory is that hot news will hopefully keep that from dwindling more.
I was happy today to see some data on this point, courtesy of fivethirtyeight (a great blog, I think). The study was in response to the likelihood that the blog would go behind the NY Times paywall, and whether that was justified. The findings are quite interesting. In short, it appears that there just aren’t that many primary source of news gathering. The AP and NY Times cover more than 20%, and the top 9 represent 50%. It’s not a scientific study, but it is definitely eye-opening and worth a read.
Of course, this doesn’t mean that hot news is the solution, but it makes me feel better about it, and about my anecdotal view that real news gathering is at risk and cannot be replaced by the blogosphere. I would also be interested in seeing the breakdown 20 years ago – maybe there were never that many sources, though slashing of news budgets implies otherwise.