The House Judiciary Committee has been scheduling some interesting hearings lately, including one next week on ICANN policies: The Expansion of Top Level Domains and its Effects on Competition. Last week, they heard about Google Book Search:Competition and Commerce in Digital Books.
Perhaps the strangest reports out of last week’s hearing were those on the Register of Copyrights’s statement, in which she asserted that the settlement “is tantamount to creating a private compulsory license through the judiciary [and that] such decisions are the domain of Congress.” The Register urged that courts shouldn’t endorse “settlements that come so close to encroaching on the legislative function.”
Now while I suggested on my first read of the settlement that the registry and clearinghouse “look[ed] like private implementations of infrastructure you’d really expect government to provide,” government has thus far failed to do so (no Orphan Works legislation), while private actors have moved them much closer. That’s a reason to bemoan government’s pace and the capture of public copyright law by special-interest lobbying, perhaps, but not to stand in the way of private cooperation toward greater access.
The great absurdity in the Register’s complaint is to label the settlement a “compulsory license.” A compulsory license, in the few places they exist in copyright law, is mandatory on the copyright holder. A songwriter cannot object to a new arrangement and recording that does not “change the basic melody or fundamental character” of a previously recorded work — her only right is to recover the compulsory “cover” license fee or to negotiate a different arrangement. The Google settlement, by contrast, offers rights-holders options: the right to opt-out of the settlement entirely, leaving the defaults of copyright law in place, or the ability to participate in the settlement and request different treatment of their works. Authors need only step up and say something if they prefer copyright’s defaults to Google’s.
So while I’d love to see the settlement opened even further, to participation from other digitizers and other representatives of the public interest, this particular complaint from the Register strikes off. If government can’t facilitate access to accumulated human wisdom, it should get out of the way (while keeping watch for anticompetitive effects) while others do. Instead, the Register’s intervention here sounds like the petulant complaint of one not invited to the settlement table.