What is wrong with the Googlebooks settlement?

POSTED BY Rick Shera
20 May 2010

posted in l@w.geek.nz | Intellectual Property | Copyright | Caselaw | International



For the last 8 months or so, I've been providing pro bono assistance to the New Zealand Society of Authors (http://www.authors.org.nz/) in their objections to the Google Books settlement (twitter hashtag #gbs) . The NZSA lodged an objection to first settlement agreement - http://thepublicindex.org/docs/objections/NZSA.pdf - and to the revised second one - http://thepublicindex.org/docs/amended_settlement/nz.pdf.  The second one has yet to be approved by the US Court, charged with deciding if it is fair. 

If you don't know what I'm talking about, you can find out more at the Public Index site, which is devoted to discussion of the settlement and its impact http://thepublicindex.org/

I'm often asked why I think the imposition of an arrangement like this on New Zealand authors is problematic.  After all, having Google promote our books for free must be a good thing.  For the World, creating a modern day Library of Alexandria, available for search online, when many of those millions of books would never have seen the light of day (because their authors cannot be found), must be even better, right?

Well that is true … to a point (there are huge caveats around what Google is really doing that I won't go into here but which you can check for yourself on the Public Index site above).

But as an ICT/IP lawyer, what I fundamentally object to with the settlement is that it turns the "opt in" basis of copyright on its head.  The beauty of copyright has always been that it arises automatically as soon as an idea is converted into tangible form (e.g. by putting it down on paper).  No need for registration or the expense of a legal expert, as is the case with trademarks and patents. International coverage as well, under the venerable Berne Convention and the more recent TRIPS agreement. The copyright owner therefore gets automatic control of its work without having to do anything (although the debate about the extent of that control is where I will differ from the so called copyright maximalists).

Overzealous enforcement of copyright (principally by the music recording and film industries), has unfortunately obscured that benefit.  So we now have whole generations of people growing up, who equate copyright with unfair limits on what they can do online and with totally disproportionate penalties for even minor infringements (like being kicked off the internet).

Google - the company that says it will "do no evil" - in a sense has taken advantage of this antipathy to copyright by scanning millions of books without permision and claiming it is doing so under protection of the US fair use doctrine.  That may well be right (I'm not a US attorney) but, as I say, what gets me is that fundamental principle being overturned.

This is eloquently explained by US legal expert, Cyntia S. Arato, in a memo which you can see at http://www.openbookalliance.org/wp-content/uploads/2010/05/Arato-Memo.pdf.  It is worth quoting a piece of it:

Throughout the court proceedings regarding the settlement, the parties attempted to conceal this profound impairment of exclusive rights by arguing that the settlement gives class members the "right” to direct Google not to use their works, and thus honors members’ exclusive rights. Yet that purported "right” is clearly an inadequate substitute for the exclusive copyright rights that the settlement takes away.

Regardless of what the settlement allows copyright holders to do if and after they remain in the settlement (i.e., if they do not take steps to "opt out”), the settlement grants Google rights to exploit a vast number of copyrighted works at the outset, by default and without any affirmative grant of rights. That alone turns the black-letter law of exclusive rights on its head. And although a portion of rights holders may in fact exercise their so-called "right” to direct Google not to use their works under the settlement, it is apparent that vast numbers of rights holders will not pursue this course, whether out of ignorance, confusion, lack of diligence or resources, or, with respect to orphan works, because those right holders cannot be found.

In addition, this alleged "right” is far from unfettered. As explained below, rights holders must jump through a series of burdensome administrative hoops to direct Google not to use their works.

This alleged "right” is also critically incomplete. Google will honor rights holders’ requests not to use their works only if the rights holders file a claim form and identify each applicable book (or insert) that is the subject of such request, on or before March 9, 2012. After that date, Google will honor these requests only if it has not digitized the applicable work as of the date of the request and only for select uses. And even where the "right” is preserved, obtaining it comes at a steep price; class members who do not opt out of the settlement forever waive their rights to sue Google for copyright infringement in the future, or even, in certain circumstances, to recover damages for a breach of contract, even if Google fails to honor member’s directives and exploits their works over their objection.

Accordingly, to the extent the settlement provides non-opting-out class members with a "right” to direct Google not to use their works that "right” is a highly circumscribed one that bears no relationship to the exclusive rights that the Copyright Act, Berne and TRIPs guarantee.

The benefits of release of vast amounts of material that is unable to be made available to the World because the copyright owner cannot be found is undoubted (although Google has been criticised for not making enough effort to find copyright owners).  But, this benefit should not come at the expense of the single biggest benefit of copyright protection - the right to reasonable control of one's own work.

POSTED BY Rick Shera
20 May 2010

posted in l@w.geek.nzIntellectual PropertyCopyrightCaselawInternational



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