Following up on earlier posts about the Google Books case and the proposed settlement with the Authors Guild regarding past copyright infringement by Google, and after reading Scott Gant’s take on the case, I now feel like I have a handle on what’s going on.
1) Google broke the law by scanning and marketing a bunch of books it didn’t have the right to scan and market. They weren’t the copyright holders, but they went ahead and did it anyway, and that’s against the law.
2) The Authors Guild — which is also a corporation with its own self interests — sued Google for breaking the law, even though it may not have had standing to do so. It did so on behalf of its members, but it also did so on behalf of itself. If Google could break copyright laws with impunity, then the Authors Guild would be meaningless as an entity.
3) Google got together with the Author’s Guild and worked out a proposed settlement that does two things. First, it resolves all of the outstanding copyright infringement cases against Google and makes them go away, and it protects Google against any future copyright infringement suits. Second, it gives Google the legal right to scan and make available digital copies of copyrighted works — the rights Google should have had originally — and effectively does so in a compulsory way. (Authors objecting to the settlement, and to the transfer of their copyrights, were required to opt out as of yesterday, but it does not seem that serious effort was made to contact and educate all affected copyright holders.)
So who’s looking out for the little guy? Who’s protecting the individual rights of the individual copyright holders? Apparently nobody.
Google wants all those books so they can own the digital book market and freeze out Amazon, Microsoft, etc. The Authors Guild, sensing an opportunity to cut a deal that validates its own bureaucracy, has agreed to transfer its members’ copyrights to Google in exchange for a chunk of cash which will go to those members, minus shipping and handling.
In the end, this is what businesses, institutions, and the people who run them do: they make deals. The Authors Guild felt like they had Google on the ropes with the original copyright cases, so they tried to push Google around. In response, Google opened its wallet and bought its way out of trouble, and out of any future trouble, by throwing some money around. And then they both turned around and started carving up the great majority of copyright holders for their own ends.
And doesn’t that actually sound right? I mean, apart from the specifics, doesn’t that pretty much sum up how things are done?
The proposed settlement gets reviewed by the courts in early October. Between then and now you’ll see a lot of sparks but I’m not going to comment much.
As to what I think authors should do, I think authors should hold onto their copyrights. So here’s hoping you didn’t miss the deadline.
— Mark Barrett
Hi Mark, first off, thanks for the kudos for my site! Second, as regards this particular issue, one serious caveat is that Google was not breaking the law with what they originally proposed to do. The legal consensus from neutral experts in intellectual property is that scanning and displaying snippets of books in response to search queries was in fact fair use, the equivalent of thumbnail photographs in Image Search, or caching web pages. The Authors Guild suit, quickly supported by the Association of American Publishers, had little chance of success. Google then, yes, did a deal more or less on the basis which you describe. But it is critical to note that Google’s intent was far different than what you describe. The settlement reflects not what Google wants—they’ve no interest in competing with Amazon on selling content, Google is about advertising—but how Google cold get the suit to stop.
Hi Richard,
Thanks for dropping by, and for your take on the Google case. You’re probably right that I shouldn’t have concluded that Google was guilty of something before they were found guilty of something. I did read (some time ago) about the fair-use argument that Google made on its own behalf, and I think I have some sympathy for that defense. But I also think, in this particular case, that Google’s application of fair use was a means by which they might legally create a entirely new market in which they were A) the dominant player and B) their dominant market position would create a de facto monopoly which might also reduce or limit the ability of digital copyright holders to negotiate (otherwise) fair market value for their properties. Which, in an odd way, seems to be the result of all of this if the Authors Guild settlement is approved.
As to Google having no interest to compete with Amazon, I find that a little harder to reconcile, particularly with Google’s recent deals with Sony — along with the fact that Google decided, on their own, to launch this massive project of digitizing copy. Sony is a direct competitor to Amazon in hardware, and Google is facilitating software (digital content) for that competition. Abstracting Google’s aims to the level of advertising when they are clearly interested in having a dominant e-content site that draws users to that advertising seems to me to be factually true but functionally false. If everyone is going to Amazon to get their e-books, then Google’s advertising revenue suffers, so Google has a motivation to ‘sell’ (or make available) content.
Having said that, I certainly don’t know a lot about this case, and I appreciate your tempering views. The fact that the first part of the proposed settlement shields Google from past copyright infringement in exchange for $45 million has the smell of an admission, but as is often the case I’m sure nobody would admit that they did anything wrong if the settlement was approved. Clearly I jumped the gavel.
[ http://thepublicindex.org/docs/objections/gant.pdf (see page 4.) ]
Ran across a fairly good analysis of all this here —
http://www.ft.com/cms/s/0/6811a9d4-9b0f-11de-a3a1-00144feabdc0.html?nclick_check=1
— some of which supports Richard Nash’s contentions in his above comment.
I’m still uneasy about any opt-in process, although I understand the argument in favor of it as regards orphaned works. I also agree that the copyright system is broken, but I don’t agree that the cause of the copyright problems (the ‘black hole’ in the above link) are resolved by the proposed Google Books settlement.
Copyrights have been extended and expanded almost entirely at the behest of corporate entities which own massed of exploitable copyrights. Such copyrights are seen as assets (intellectual property) akin to patents: they can be exploited almost infinitely, as long as the clock can be kept running. (The life of a copyright no longer bears any relationship to the life of an author, because so much content is created as a work for hire by corporate ownership. Because corporations almost never, ever die, they would prefer that their exclusive right to exploit a copyright also never expire.)
Solving an existing problem with an admittedly middling solution will certainly change things, but I think it simply creates another imperfect system. Given all of the unknowns in the new digital marketplace, I’m inclined to think that going slow and solving problems on a case-by-case basis makes more sense than simply rolling the dice. What we have now works, however imperfectly. It’s understandable that the proponents of technology are arguing that technology itself crates an entire new reality, but that doesn’t make it true.
http://www.businessinsider.com/google-apple-rivalry-2009-9#smartphones-android-vs-iphone-1
That’s a very good summary of yet another front opening between two large tech players. I’m losing track of all the plots and sub-plots here, but I don’t think the friction should be surprising. As the web integrates and evolves, everyone is going to want to be able to communicate with everyone in any conceivable context. That means more openness and interoperability between platforms, not less.
I also think this is a very, very difficult thing for corporations to get their minds around. If you’re a business, you want to own everything — so the obvious goal is to own a standard (which you can license, or monopolize, or both) to the exclusion of all others. But as we just saw in the music business, attempts to control a market through technology fail in the era of digital distribution. Stand in the way of the horde and they’ll simply go around you.
yep sir