Sidestepping Congress

Copyright guru Pamela Samuelson has delivered a thorough analysis of motivations and challenges facing the GBS parties.  Her article, The Google Book Settlement as Copyright Reform, to be published in the Wisconsin Law Review, highlights just how complex and far reaching the settlement is.  The article also demonstrates how the proposal is a vehicle to replacing Congress as the driver of copyright reform.

On the motivation for Google undertaking the book scanning project and risking legal action, Samuelson writes:

Google undertook the GBS initiative not only because it wanted to attract more users to its search engine and supply them with snippets of information contained in the many millions of books it was scanning; it also wanted to make ―non-display uses of the books’ contents for purposes such as fine-tuning its search engine and language translation technologies. As one Google employee has observed, ―the very worst [search] algorithm at 10 million words is better than the very best algorithm at 1 million words. The best way to improve search technologies, he pointed out, is to get more data. It is obvious that books from major research libraries are dense with data.

Google‘s motivation to settle the Authors Guild lawsuit was not just, and probably not mainly, to avert the risk of statutory damage liability, but more substantially as a means to generate revenues from which it could recoup the costs of the GBS initiative. Google is an amazingly innovative and successful company, but thus far, it has been, as Steve Ballmer has put the point, ―a one-trick pony, in that it makes the overwhelming majority of its revenues from search-related advertising.

Eric Schmidt, Google‘s CEO, has said that he likes this pony very much, but he has also been cajoling Google staff to develop new revenue sources. The settlement, if approved, would generate considerable revenues for Google, as it would then be authorized to serve ads against GBS content, most of which it could keep for itself.

Too true, but hardly the same motivation that was described by Sergey Brin in his October 2009 New York Times op-ed that compared the GBS to an eternal library at Alexandria.

To be fair, all parties can agree on the benefits of safeguarding the planet’s literary treasures. But the question has been, and continues to be, is a unilateral project by a for-profit company that side-steps congressional authority an appropriate method of achieving the goal?

The full synopsis of Pamela Samuelson’s paper is below. It should be required reading for all GBS watchers.

An intriguing way to view the proposed settlement of the copyright litigation over the Google Book Search (GBS) Project is as a mechanism through which to achieve copyright reform that Congress has not yet and may never be willing to do. The settlement would, in effect, give Google a compulsory license to commercialize millions of out-of-print books, including those that are “orphans” (that is, books whose rights holders cannot readily be located), establish a revenue-sharing arrangement as to these books, authorize the creation of an institutional subscription database that would be licensed to libraries and other entities, resolve disputes between authors and publishers over who owns copyrights in electronic versions of their books, provide a safe harbor for Google for any mistakes it might make in good faith as to whether books are in the public domain or in-copyright, and immunize libraries from secondary liability for providing books to Google for GBS, among other things.

This Article explains why certain features of U.S. law, particularly copyright law, may have contributed to Google’s willingness to undertake the GBS project in the first place and later to its motivation to settle the Authors Guild lawsuit. It then demonstrates that the proposed settlement would indeed achieve a measure of copyright reform that Congress would find difficult to accomplish. Some of this reform may be in the public interest. It also considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or an additional reason in favor or against approval of this settlement.

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Important Dates

December 14, 2009
Notice begins

January 28, 2010
Deadline for authors to opt out of the settlement

January 28, 2010
Deadline to file objections and/or amicus briefs

February 4, 2010
Deadline to file notice of intent to appear at Fairness Hearing

February 4, 2010
DOJ response

February 11, 2010
Plaintiffs move for final approval

February 18, 2010
Final Fairness Hearing

March 31, 2011
Deadline to claim Books and Inserts

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