March 23, 2011 | By corynne mcsherry

Good and Bad in Google Book Search Settlement Decision

Yesterday’s decision rejecting the proposed settlement in the Google Books case, Authors Guild v. Google, got a number of things right. For starters, as we wrote shortly after the decision was announced, we’re glad that the court acknowledged the importance of the privacy concerns we helped to raise.

With respect to the class action analysis, the court correctly concluded that the settlement did not take account of the interests of all of the class members, such as academic authors. As UC Berkeley law professor (and EFF board member) Pamela Samuelson noted in a letter quoted by in the decision,

Academic authors, almost by definition, are committed to maximizing access to knowledge. The [Authors] Guild and the [Association of American Publishers], by contrast, are institutionally committed to maximizing profits.

For example, academic authors, if they had been represented at the negotiating table, might have pushed harder for settlement terms that would have allowed readers open access to orphan works.

On the policy front, the court recognized – as do we – the extraordinary potential benefits of the settlement for readers, authors and publishers. We firmly believe that the world's books should be digitized so that the knowledge held within them can made available to people around the world. But the court also recognized that the settlement could come at the price of undermining competition in the marketplace for digital books, giving Google a de facto monopoly over orphan books (meaning, works whose owner cannot be located). The court concluded that solving the orphan works problem is properly a matter for Congress, not private commercial parties. Sadly, Congress has thus far lacked the will to do so. Perhaps yesterday’s decision will finally spur Congress to revisit this important issue and pass comprehensive orphan works legislation, that allows for mass book digitization.

That said, the court also got some things fundamentally wrong in its copyright analysis. For example, it states that “a copyright owner’s right to exclude others from using his property is fundamental and beyond dispute” and then proceeds to quote at length from the letters of numerous authors (and their descendants) who share the misguided notion that a copyright is, by definition, an exclusive right to determine how a work can be used. We respectfully disagree. Copyright law grants to authors significant powers to manage exploitation of creative works as a function of spurring the creation of more works, not as a natural or moral right. And those powers are subject to numerous important exceptions and limitations, such as the first sale and fair use doctrines. Those limits are an essential part of the copyright bargain, which seeks to encourage the growth and endurance of a vibrant culture by both rewarding authors for their creative investments and ensuring that others will have the opportunity to build on those creative achievements. Thus, as the Supreme Court has explained, such limits are "neither unfair nor unfortunate" but rather "the means by which copyright advances the progress of science and art." If the legal issues raised in the underlying lawsuit are ever litigated on the merits, let's hope this or any future judge keeps the traditional American copyright bargain firmly in mind.

The court also insists that it is “incongruous with the purpose of copyright laws” to ask copyright owners to come forward (via the proposed settlement’s opt-out procedures) to protect their rights if they object to Google's activities. Actually, that is precisely what our legal system assumes, i.e., that the copyright owner carries the burden of asserting its rights. And a good thing too, because in many cases, as the orphan works discussion demonstrates, the rightsholder may not be findable (this is especially the case when the original author has died or the publisher has gone under) or may not be interested in asserting her rights. Either way, putting the onus on the rightsholder to step forward expands the breathing space for re-use of creative works.

Finally, the court gives undue credence to the alleged concerns of foreign rightsholders, even though most non-U.S. works were excluded from the proposed settlement, concluding that whether or not the international law concerns are legally valid, “it is significant that foreign authors, publishers, and, indeed, nations would raise the issue.” If, as the court suggests, the orphan works problem can only be solved at the global level, we fear that solution is far-off indeed.

The court urges the parties to go back to the drawing and craft an “opt-in” solution. We worry that limiting digitizers to an "opt-in" approach will result in the creation of limited digital bookstores instead of vast digital libraries. Regardless, we’ll be watching to see what parties to the lawsuit do – and who is invited to participate in the process.

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