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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


  1. I am so sick of you and Irvin Muchnick using the same stale arguments in the Freelance suit and now this Google settlement. Whenever anyone disagrees with your position, you claim that the dissenter has it “backwards.” In the Freelance settlement, you not only assume that the value of the infringed works is far more than the settlement provides, you are POSITIVE about it. Why this is, I have no clue. You are like the right wing nuts who ran this country into the ground for eight years who were so sure the ends justified the means that they didn’t care who got hurt along the way. For the millionth time, the value of at least 90 percent of the infringed freelance works have minimal future value. That’s my opionion from personal life experience. Although the point can be argued, your course of action should have been to opt out of the Freelance settlement and not try to speak for the 95 percent of the folks who felt it was fair. You had the legal right to object, but in doing so your selfishness has caused grief to a lot of people. Since I’m not a book author, I really don’t have a position on the Google settlement. But as far as the freelance settlement, you are and always hve been DEAD WRONG. One can only hope the Supreme Court puts right all the havoc you and your cohorts have brought.

    Comment by Michael Scott — April 13, 2009 @ 9:25 am | Reply

  2. My objection was never about the amounts offered in the freelance settlement but about the default license granted to the Defendants.

    The post you’re replying to quotes the Register of Copyrights, Marybeth Peters, voicing substantially the same objection. I gather then that you believe that the Register of Copyrights is also dead wrong.

    – Anita Bartholomew

    Comment by editorialconsultant — April 13, 2009 @ 9:30 am | Reply

  3. I guess you don’t understand the meaning of SETTLEMENT. In a settlement, both sides compromise and come up with a solution to a dispute. In this case, in exchange for money for past infringements (which were worth more when they were originally infringed) in exchange for the right to keep their databases intact with future rights for the SAME content (that is now worth relatively much LESS). Apparantly, you just want the publishers and data bases to empty their banks and just hand out much more cash than what they are receiving is worth. Your logic, or lack of it, is astounding. I guess when you can see only one side of an issue, the results are predictable.

    Comment by Michael Scott — April 13, 2009 @ 10:28 am | Reply

  4. I would like to add one more thing to my last comment. At least you have the integrity to publish an opposing opionion. I have tried posting to Mr. Muchnick’s blog on several occasions, but he refuses to publish my comments because my opinion is contrary to his. Apparantly Mr. Muchnick’s position is so weak, he can’t defend it against opposing views. For those who do not know, Mr. Muchnick is a co-objector in the Freelance suit.

    Comment by Michael Scott — April 13, 2009 @ 10:34 am | Reply

  5. Michael, having settled a copyright infringement claim I made against a major publisher, a number of years ago, on terms quite favorable to me, I do, indeed, understand the meaning of “settlement.”

    In my case, the amount I received, and other terms to which I agreed, affected only me. I didn’t use the rights of others as leverage

    This is what the freelance and Google cases do. This is what I object to.

    You, apparently, are primarily interested in venting, but not in weighing the merits. I’ll leave you to your rant.

    Comment by editorialconsultant — April 13, 2009 @ 10:46 am | Reply

  6. If you have settled a copyright infringement against a major publisher in the past, why did you not opt out of the class action suit this time? You said “I didn’t use the rights of others as leverage.” Who are you to speak for the rights of others? And in this case the vast majority of others.

    Comment by Michael Scott — April 13, 2009 @ 11:02 am | Reply

  7. I don’t mean to sound like Columbo, but just one more thing. In comment number 2 you stated “My objection was never about the amounts offered in the freelance settlement but about the default license granted to the Defendants.” Well, on numerous occasions your co-objector Muchnick has stated that he would have accepted the settlement if more cash was forked over. He’s said time and time again in interviews that the amount of money offered in the settlement was “insufficient.” In other words, Muchnick would be perfectly fine giving away his precious “license by default” if HE deemed the amount of money sufficient. Talk about lack of principles.

    Comment by Michael Scott — April 13, 2009 @ 11:17 am | Reply

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