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.Â 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.Â 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.Â 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.Â Has Google backed away from an interesting and socially constructive fair use fight in order to secure market power for itself?Â 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.Â 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:Â Are we seeing the early stages of the beginning of the end of copyright law as we know it?Â Â 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.Â 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.Â 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.Â Fighting over the scope of section 106 (the copyright owner’s exclusive rights) and section 107 (fair use) sometimes seems very 20th century.Â 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.Â The “easy” reason is that the trend up-ends our common expectations about the functional and cultural meaning of public authority.Â There are a lot of standard doctrinal buttons to push to pull the reins back on pluralistic innovation;Â antitrust law is just one of those.Â TheÂ 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.Â My expectation is that the doctrinal buttons will fall considerably short of putting the brakes on the emergence of that environment.Â It will be interesting to see what happens . .Â . next.
Mike — it seems to me that it has been true, at least from the advent of the free software movement, if not before, that much of the balance that copyright is trying to strike is based on an inadequate model of the actual practices and desires of authors.
So I’m with you that the center of copyright law doctrine is increasingly distant, in the digital era, from the center of information policy. It seems to me that much of the copyright + tech scholarship in the last 10 years has been about this trend, in one way or another.
But the Google Print suit tells a different story for me. It is about as much about the interests of creative authors as it is about the power of both computing and financial capital (Google) arrayed against organized publishing capital (The Guild).
It doesn’t surprise me that a deal was struck — it was in the interests of both parties to do so. I’m not even quite sure that a court decision would have been better — a big win or big lose for either Google or the authors might have had some problematic implications.
Yet by clarifying the law for third parties, a ruling would have greatly alleviated some of the anti-competitive issues presented by this deal. And to some extent, this perpetuates the IP licensing culture that seems to favor, inevitably, established players over new entrants.
But on your broader point, this deal was surely bargained in the shadow of fair use law. If fair use didn’t cast its particular shadow, the deal would have been struck in a different way.
What interests me is how fair use law may well change in the shadow of a deal like this, casting a different shadow in the future. In some ways I can see it changing for the better, but in some ways the very existence of a licensing deal suggests it has changed for the worse.
I should point to James’ thoughts too, to add to the collection of links above.
I disagree with the view that “law and society lack any generally accepted criteria for evaluating the legitimacy of the kind of pluralistic environment that Iâ€™m trying to describe.” I tried to develop some guidelines here:
The emergence of this private system makes it all the more imperative for the Library of Congress to require digital deposit, in case the Google-led effort veers away from its founding principles.
I’ve refrained from commenting further because I haven’t yet read the agreement. But one sine qua non for legitimacy here should be universal accessibility to the database of books and text itself. Something like that appears to be promised in the notice below:
“Readers are also big winners under the settlement of Authors Guild v. Google. Readers will be able to browse from their own computers an enormous collection of books. We hope this will encourage some readers to buy full online access to some of the books. Readers wanting to view books online in their entirety for free need only reacquaint themselves with their participating local public library: every public library building is entitled to a free, view-only license to the collection. College students working on term papers will be able to point their computers to resources other than Wikipedia, if theyâ€™re so inclined: students at subscribing institutions will be able to read and print out any books in the collection.
“We expect that millions of out-of-print books (and many in-print books) will be available through Google Book Search to readers, but we donâ€™t know how many, since that depends partly on you. Participating rightsholders can choose to pull their books from this service with reasonable notice at any time and will retain substantial control over Googleâ€™s presentation and pricing of their books.
“As with any class action, individual class members remain free to opt out of the settlement. ”
from Roy Blount Jr., President, Authors Guild
Frank — My comment about legitimacy wasn’t directed only at Google Book Search or only at novel copyright-related institutions, archival or otherwise. And it wasn’t aimed specifically at the kind of project that frames your earlier post (ensuring that the outcome serves the public interest) — though if it were, I disagree that the standard that you begin with (universal open access) is generally accepted. Legitimacy has both descriptive and normative elements, and open access is a controversial position in both senses.
Greg — I think that we don’t disagree. My point wasn’t (isn’t) that copyright doctrine is unimportant, but rather that it is part of an increasingly complex matrix of interests and institutions, and the doctrine itself is no longer necessarily first-among-equals. One way to take your “shadow of fair use” point is that both the existence and the scope of the doctrine set the initial bargaining positions of the parties and constrain their options. In that sense, legal doctrine is always important; the Google deal presents nothing new. A different way to take the point, however, is that (as you say) the deal is as much about shaping copyright and other IP concepts as the deal is about responding to them. Again, as with my reply to Frank, that point applies not just to Google Book Search but potentially to a broad variety of emerging institutional and disciplinary arrangements.
I think last year’s deal between the record labels and iMeem shows that this trend is coming from both sides. Dominant rightsholders are increasingly lying in wait in order to let the market determine who is the “winner” in exploiting content, then bringing suit not to stop the activity (as you might expect in a 20th century case like Napster), but rather as a negotiating lever to get equity in the enterprise, seeking to participate in the upside as a co-owner.
What about the question of the legality of handing Google the right to display, print, and sell books that are out of print but still in copyright? Yes, the rights owners can “opt out” of the settlement or exclude books from the proposed uses, and yes, Google promises to share revenues with rights holders. But why does Google obtain rights to these works by default? Why do a couple of organizations that many authors and publishers have nothing to do with get the right to speak for virtually all U.S. rights holders worldwide in crafting the settlement?
Rights holders who don’t want their work subject to Google’s uses would have the extra burden of becoming informed about the settlement and then excluding their works. (As would rights holders for in-print works who don’t want their content included in Google’s indexing and other “non-display” uses.) A rights holder might want to limit access because they’re planning to bring a work back into print. (The settlement has provisions for this, but the terms are strict, requiring an announcement to “the trade” and publication within a year.) Or a rights holder might be hoping to sell rights to another party, or maybe they just don’t trust Google or want anything to do with them.
Does the promise of easy access to out-of-print works now trump the rights of the copyright owners?