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September 10, 2009

Google settlement an “end run around copyright law” says Register of Copyrights

Finally, Congress is reviewing the settlement. Where have they all been until now?

From a report in The Wall Street Journal:

The head of the U.S. Copyright Office told Congress on Thursday that she had serious concerns about Google Inc.’s (GOOG) legal settlement with authors and publishers who sought to block the company from scanning books and making them searchable online.

Marybeth Peters, the register of copyrights, said in written testimony before the House Judiciary Committee that the Copyright Office was particularly concerned that the settlement would allow Google to display and distribute out-of-print books without prior consent from the copyright owners of those books.

“To allow a commercial entity to sell such works without consent is an end-run around copyright law as we know it,” Peters said.

“In the view of the Copyright Office, the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress,” she said.

April 13, 2009

The Register of Copyrights weighs in on Google settlement

Marybeth Peters, Register of Copyrights (the person at the United States Library Of Congress in charge of the system that maintains records of who owns which copyright), has many things to say about the Google settlement. She was the first speaker at the conference Columbia Law School held in March on the settlement. The video of the conference is online.

As I was able to pause the video in order to transcribe parts of her speech, I learned (and will share) a great deal about her views that I haven’t seen reported elsewhere.

The first point she made, and the one she returned to many times, is that she’s troubled by the use of class action lawsuits to grab future rights because they are, in essence, legislation via litigation:

“I do believe that class actions generally look backward and settle infringements that have been in the past. And typically, when you go forward, it’s typically the prerogative of Congress, the legislative branch, to decide what the rules should be. And when they do that, they think of things like, ‘Are we meeting our treaty obligations?’ ‘What about the public interest?’ And everybody has an opportunity to be heard.

“And the question is, when you have a private agreement where there are private solutions that are in the nature of legislative action, resulting in something that would be a legislative action, is that a good thing?”

But does this settlement (and the earlier one, granting licenses by default to the defendants in the case now before the Supreme Court, Reed Elsevier v. Muchnick, No. 08-103) really change copyright law? Yes, by creating exceptions to the law that encompass almost all of the literary works that would be subject to it.

And the way such settlements change the law is particularly troubling. The infringers, i.e., the wrongdoers, the ones who should be paying steep penalties to deter them from future wrongdoing, always come out the winners.

Peters paraphrased the analysis of the Google settlement by Brewster Kahle, the creator of the online Wayback Machine:  it creates new copyright laws and a new payment system, all to benefit a single monopoly, for access to the collective books of mankind.

Her own concerns about the agreement appear to mirror Kahle’s.

“One thing I do know is that the legislative process is what the Constitution had in mind with regard to copyright policy. There is a balance between encouraging creativity and rewarding authors. And it gave that power to the Congress. And the Congress does act, sometimes slowly, sometimes well, sometimes, not so well. But that’s the Constitutional balance.”

Peters also complained that there are many unanswered questions and the possibility of unintended consequences. (Several other speakers at the Columbia Law School conference, all experts on copyright, said they were confused about what the settlement really said).

What was clear is that the vast future license for Google troubles the person in charge of copyrights for the U.S.

It should trouble us all.

The above is part 4 of a series of blog posts on the settlement reached between Google, the Authors Guild and the Association of American Publishers to settle a copyright infringement case related to Google’s unauthorized scanning of books.

- Anita Bartholomew

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