It’s never a good sign when a corporation starts acting like a government agency.
Last night, late on a Friday, Google and its co-conspirators dropped the court-mandated revised settlement to the Google Books case. This was done to limit news coverage of the event over the weekend, which predisposes me to think bad thoughts about Google in general, and about the revised settlement in particular.
On the merits of the actual case, the New York Times says:
The revisions to the settlement primarily address the handling of so-called orphan works, the millions of books whose rights holders are unknown or cannot be found. The changes call for the appointment of an independent fiduciary, or trustee, who will be solely responsible for decisions regarding orphan works.
Cutting to the chase, if only because I’m loathe to deconstruct the disingenuous layers of marketing spin, legalese and outright fraud being marshalled by Google in their attempt to hijack other people’s copyrighted works, it seems to me that this revised settlement is pretty much what anyone would have expected. In sum, an attempt to polish up the chrome while making no changes to the underlying structure of the previous settlement, wherein Google becomes the beneficiary of a new legal standard of copyright ownership. If they scan a book, they own it until you prove it’s yours.
(Yes, I know, that’s probably not legally correct, but I’m not really a fan of the way the legal system has been functioning lately. See also: state-sponsored torture, Wall St. bailouts, housing bubble carnage.)
More level-headed analysis here from Danny Sullivan, with links to source texts:
By their nature of being unclaimed works, the authors and publishers never opted-in to being scanned. So how can Google say the model is opt-in?
Aiken explained that Google’s general model for adding books not covered by the settlement is opt-in. Clancy then also clarified that for all known works [that are still in copyright], opt-in is used. And that the actual number of orphan works is small.
In other words, for books in copyright with known authors or publishers, Google asks permission for them to be included through its partners program. But the library scanning project, that has some books that were scanned which are in copyright but without known rightsholders. While these were scanned on an opt-out basis, the settlement effectively converts them into opt-in by holding that permission (and any revenues) in trust, for when the rightsholders are found.
Which, frankly, still isn’t opt-in. And given that everyone is so positive that you CAN find rightsholders for most of these unclaimed works, why not go out and find them first, then ask if they want to be included.
Well, obviously, for the same reason that you don’t ask native peoples if you can strip their land, kill all the wild game, and then kill them. It’s too slow and costs too much money. Businesses need to be efficient or they won’t be able to compete in the global marketplace. If that means assuming broad new categories of legal protection that strip rights from individuals, well, that’s what it means.
More analysis here:
By carrying over the same language for the UWF [Unclaimed Works Fiduciary], Settlement 2.0 confirms that Google will have the only game in town for the unclaimed works. Nothing in the amended version gives the UWF any new powers for such purposes; the other clauses that refer to it give it power to negotiate specific terms with the Registry and Google under the various programs the settlement specifically allows Google to set up. The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation. They’re going to try to tough this one out; the DOJ will have to decide whether to back down or to fight, as this amended settlement doesn’t give it one of the central changes it asked for.
So what does this all mean? It means that Google and their co-conspirators haven’t really altered the basic agreement. They want to own this market, they’re going to try to take it, and the only people who can stop them are in the United States Justice Department. I would like to say I have faith in my government or feel confident about the outcome, but right now I keep thinking about the Cherokee Nation.
— Mark Barrett