Google’s Austrian Waltz

In short, Google’s book digitization strategy in the U.S. has focused on creating an impenetrable content monopoly that violates copyright laws and builds an unfair and legally insurmountable lead over competitors.

Ironically, last week Google struck a 30 million Euro deal with the government of Austria.   According to reports, Google will digitize 400,000 out-of-copyright books.  Google will not have exclusive use of the scanned books and Austria’s national library will provide access to the books via its own website. It’s disappointing that the stakeholder community here at home wasn’t shown even that level of respect.

After years of criticism from authors, libraries, independent publishers across the globe and even the U.S. Department of Justice, stakeholders held out hope that Google and its partners would have abandoned their go-it-alone approach and engaged the broader community of interests – including Congress – for an approach centered on the public interest.

For months, the Open Book Alliance has been calling for Google to offer a solution that allows for the digitization of books anchored in the principles of an Open Process, Public Guardian and Public Interest.

Now, as we all wait for Judge Chin to release his decision on the GBS, it becomes painfully clear that the parties missed an opportunity to embrace a better solution.  Many observers believe that the flawed settlement won’t be enacted as it’s currently constructed. Perhaps that could be a catalyst towards a collaborative process.

GBS is classcopytrustliphant?

James Grimmelmann, Associate Professor at New York Law School’s Institute for Information Law and Policy has firmly established himself as an expert on the Google Books Settlement.  His blog, The Laboratorium, has provided robust analysis of Google’s lawsuit and the ongoing settlement saga.

In a post yesterday, Professor Grimmelmann has staked out a new frame through which to view the Settlement.  While his final essay is not yet available, he does share the abstract on his blog.  Essentially, he says that the Settlement cannot be viewed through the individual issues it raises.  Instead, the Professor says one must “smoosh” together the issues of class action, copyright, and antitrust in order to fully understand its depth, using an elephant to illustrate his point.

From Grimmelmann’s post:

The genius—some would say the evil genius—of the proposed Google Books settlement is the way it fuses legal categories. The settlement raises important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement is more than the sum of the individual issues it raises. These “issues” are, really just different ways of describing a single, overriding issue of law and policy—a new way to concentrate an intellectual property industry.

The Professor also invents a new adjective to describe the Settlement when properly viewed through his ‘Elphantine’ frame:

Truly pinning down the settlement, however, will require tracing the connections between these different legal areas. I will argue (Part III) that the central truth of the settlement is that it uses an opt-out class action to bind copyright owners (including the owners of orphan works) to future uses of their books by a single defendant. This statement fuses class action, copyright, and antitrust concerns, as well as a few others. It shows that the settlement is, at heart, a vast concentration of power in Google’s hands, for good or for ill. The settlement is a classcopytrustliphant, and we must strive to see it all at once, in its entirety, in all its majestic and terrifying glory.

Thanks to Professor Grimmelmann for helping bring both clarity and new vocabulary to the confusing world of the Google Books Settlement.