Measuring the DoJ Response to the GBS Settlement

Pam Samuelson’s latest HuffPo column measures the Department of Justice response to the proposed Google Book Search settlement.

All commentators, including Pam and Randy Picker (in his post below) note that the settlement is being revised (James Grimmelmann speculates that the negotiations are “frantic”).

At a very mundane, pragmatic level, revising the settlement to meet the DoJ’s objections (and the anticipated judicial response) seems both wise and necessary.

It also seems like an absolutely crazy way to make what (at one level) are deep, structural changes to copyright policy.  Between representing the interests of living authors, dead authors, American authors, non-American authors, current readers and users, unknown and future readers and users, publishers, archives, libraries, and scholars (and I’ve probably left out a constituency or two or three), designing a digital commons of published texts — that’s what the Google deal aspires to do — is the sort of thing that should, I would imagine, take more than a “frantic” effort.  It should be both considered and a kind of legal moment.

Out in California, people are talking about holding a constitutional convention to break the death grip that holds state politics (and the state’s economy) in its grasp. That death grip is attributable largely to the referendum system.  Californians adopted governance by referendum decades ago, as a way to break the death grip of the robber barons.  Now the cure of the referendum itself, among many other problems, is worse than the disease.  The GBS strikes me as something like a referendum on the current copyright system:  rather than repairing the statute, the parties are doing their best to design around it, encrusting the statute with an elaborate, detailed scheme to give authors and readers what authors and readers likely would have if the statute were better suited to modern needs in the first place.

It is probably too late to think about the IP equivalent of a constitutional convention in any but hypothetical terms.  Even if there were the copyright equivalent of the mechanism that the Californians are trying to use, it is fair to doubt the likelihood that everyone could sit down in a room, a virtual room, or a series of both or either, and work toward a comprehensive new system in good faith.  That is more or less the approach that gave us the 1976 Copyright Act, and that process, for all of its success in producing a new statute, was deeply flawed.  But I wonder what the output of a 21st century “copyright convention” would or could be, and I wonder what kind of referenda to fix the referenda — litigation and legislation to fix whatever form the GBS settlement eventually takes — we will need and see in the future.

The Google Book Search Settlement Goes Meta

Updated Sept. 1:  If you are interested in librarianship, cataloguing, and the metadata aspects of Google Book Search, then read not only Geoff Nunberg’s post linked below but the ongoing comments thread, which is, if anything, more interesting than the original post.  Both causes for and cures for metadata flaws are complex, and Google (which is ably represented in the comments) is aware of both.  As Nunberg notes, Google’s awareness doesn’t exonerate Google from responsibility.  Perhaps the most fascinating thing here, however, is the power of the Language Log blog and a single thoughtful post to stimulate a substantive conversation that actually impacts the world.

Geoff Nunberg at Language Log has a great and passionate post about flaws in the Google Book Search program that aren’t usually part of the IP/privacy debate.

Nunberg’s basic points are that (i) there is basically one chance to do this book scanning thing right; (ii) Google is screwing it up;  and (iii) one major way in which Google is screwing it up has to do with metadata errors on a very, very large scale. Google apparently wants to blame its partner libraries for the flaws; Nunberg shows that blame should be laid squarely at Google’s doorstep.  Don’t miss the comments, where Nunberg carries on the conversation.

In a related LL post, Mark Liberman liveblogged large chunks of the recent UC Berkeley conference on the GBS settlement.

The interesting thing to note about LL’s interest in GBS is that their interest in this resource is primarily scholarly, that is, the GBS archive and database are resources for scholars, among other things.  This is in contrast to the usual public cries about large scale privatization of information resources, which consist of flavors of “the public needs access so that it can do/use cool new creative things; culture is cumulative; and lots of great stuff was produced in the first half of the 20th century.”  The LL critique of GBS is, in other words, disciplinary, and it asks specific historical questions.  For both reasons, it appeals to my sympathies more powerfully and carries more immediate persuasive power than arguments over GBS’s foreclosing access to “orphan” works.  Not that the orphan works aren’t important or that orphans aren’t sympathic.  They are, always and everywhere, and it’s fair to say that GBS mistreats orphans.  Often.  Cue the orphan boy from Pirates of Penzance.

The Google Book Search Settlement and its Implications

My attention wandered for a moment and I failed to post a link to the second of Pam Samuelson’s excellent Huffington Post analyses of the Google Book Search settlement:  “Why is the Antitrust Division Investigating the Google Book Search Settlement?

This also seems an apt moment to observe that the real import of the GBS settlement and the outcome of the DoJ examination may have little to do with books.  Books are so, well, 20th century.  Books may even be 19th century; the iconic 2oth century cultural artifact for copyright purposes may be the popular song, especially if you begin to measure centuries in roughly the 50th year (1850, 1950).  Much is made of how the American Copyright Act is oriented to the proposition that copyright is needed to encourage the production and distribution of books, and other things are covered by copyright to the extent that other things are more or less like books.  But you could say much of the same thing about American copyright law and popular music, focusing not on the simplicity of Sections 106 (the owner’s exclusive rights) and 107 (fair use) and 109(a) (first sale), but instead on compulsory licensing and secondary liability.  The iconic 21st century cultural artifact for copyright purposes?  My bet:  the videogame.

The real import of the GBS settlement, in other words, may not be what it tells us about access to books (including digital books), especially “orphan” works.  Instead, what emerges as the architecture of GBS will tell us a lot about the acceptable architecture for comparable (but for the moment, hypothetical) massive assemblages of copyrighted material that are far more likely to attract widespread popular attention than the GBS settlement has attracted so far:  music, visual art, and combinations of both together with “user generated content.”

Taking the Google Book Search Settlement to Another Level

Academic angst about the Google Book Search settlement is well on its way to reaching a fever pitch, with fora and conference galore scheduled between now and the October hearing on confirmation of the deal.

But if the stakes for books and knowledge are greater than that, then ways need to be found to bring the debate to a broader audience.

Pam Samuelson is blogging. Well, not blogging precisely, but she has a column up at the Huffington Post that introduces the settlement and the stakes to the HuffPo world, which is a lot larger than the world of academic lawyers. She makes one point right off the top that I think is right (and not just because it echoes what I wrote when the settlement was announced):

Sorry, Kindle. The Google Book Search settlement will be, if approved, the most significant book industry development in the modern era.

And there is more to come.  The next column will talk about the Justice Department’s looking at the settlement, and what that portends. 

Here’s what I think that it portends.   The Justice Department will, in the end, facilitate a deal that gives other book scanning projects a release regarding orphan works that is comparable to what Google is getting via the settlement.  (A deal may do much more than that, but that is where I believe the deal will start.)  A host of technical and conceptual obstacles lie in the path of that deal, not the least of which is the fact that only Google is a defendant in the lawsuit that prompted the settlement, and the fact that a hearing on the settlement comes up in only a few weeks.  But that’s where I think this is going.  And in the annals of IT/antitrust setttlements, it will take its place as an industry- and communications technology- defining event, along with antitrust pursuits of IBM in the 1960s (which, in part, gave us the modern software industry), AT&T in the 1970s (which, in part, gave us the Internet), and Microsoft in the 1990s (which, in part, gave us open source software).

We’ll see what Pam S. has to say.