Compelling Silliness: Register on Google Book Settlement
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.
“The Google settlement, by contrast, offers rights-holders options: the right to opt-out of the settlement entirely”
The opt-out date is past (went by on 4 September). That option is closed off now. There is no doubt that a great many writers even in the US, let alone worldwide, remained ignorant of the settlement’s implications (and even of the existence of the settlement) right up until the opt-out date, so that no meaningful choice was offered them at all.
“the ability to participate in the settlement and request different treatment of their works”
Authors of what the settlement agreement terms ‘inserts’ - shorter pieces such as poems, essays and short-stories published in multi-author collections - have very limited choices under the settlement agreement. They may choose to exclude their works from what the agreement calls ‘display uses’ (such as the display of pages in search results) but they cannot prevent Google from selling access to their works to libraries or private customers. Under copyright law, all works have the same protections, regardless of length or whether they are published in single-authored or multi-authored works. Under the settlement regime, not so. This is a fundamental shift.
“the Register’s intervention here sounds like the petulant complaint of one not invited to the settlement table”
The Register’s measured analysis sounds like good law to me.
Comment by Gillian Spraggs — September 17, 2009 @ 5:07 pm
Might what happens to orphan works be rightly called a “compulsory license” (or at least doesn’t it quack like one?)?
As for orphan works legislation, the Congress could well learn from the settlement. In particular, it covers only text orphans. I wonder if the Congress couldn’t pass a “books only” (text only) orphan works bill; the real fights over past efforts arose from the visual arts groups.
Comment by Lewis Hyde — September 19, 2009 @ 9:23 am