Monday, March 9th, 2009 at 7:26 pm
In light of Tim’s two-part analysis of the Google Books settlement, I’d like to revisit some of the ideas brought up in my own post about the matter and see if I can reconcile my conclusion that this settlement is a win for the public with Tim’s criticisms. But first, let me begin by eating a few of my own words.
I had previously declared that “The job of the judiciary is not to set policy for the public good, but rather to resolve disagreements under the law.” In response, Tim rightly took issue with the statement, by saying “that ship sailed several years ago when the judge gave the green light to a class action lawsuit in which the “plaintiff” is the class of every author in the country.”Even if the settlement is deemed fair to every member of the plaintiff class, the fact that it encompasses an entire industry means that it affects ordinary citizens just as surely as laws like the DMCA do. However, this doesn’t indicate a particular failing of class-action law. Our entire system of common law accepts and embraces the fact that the Courts’ decisions are effectively policy. Now that it’s clear that we’re looking at this from a policy standpoint, let’s take a look at some of Tim’s other issues with the settlement.
In his first part, Tim paints a picture of the industry in which the settlement has raised near-insurmountable barriers to entry in the book-search market where, without the vital protections of fair use, even large corporations with deep pockets can’t really compete with Google. I don’t disagree with this assessment of the situation, but I question how much of this was brought on by the settlement. Way back in 2005 after Google had started it’s ambitious (and audacious) effort to digitize millions of both out-of and in copyright works, Microsoft and Yahoo began a much more conservative project that only sought to scan works whose copyright had expired. Clearly, even before Google “burned the fair use bridge,” the only other major competitors had decided it looked a bit too shaky to invest the hundred or so million dollars it would take to attempt a crossing. In the end, Microsoft pulled out from the project with many observers agreeing that it was competition with Google that drove them away. Thus much of the anti-competitive features of the settlement are mitigated by the fact that other market realities had already made book search a monopoly.
In part two, Tim considers the unique position of the courts to grant Google, and only Google, immunity from the orphan works problem. His analysis is compelling, and I agree with him in principle that bypassing the orphan works problem for a single company raises serious questions about equality under the law. However, I’d like to draw out one point that Tim quickly passes over: that from a practical perspective, it’s a good thing that at least one company has found away around this crippling problem. Without this kind of settlement, it is likely that these orphan works would have remained essentially inaccessible to the world at-large for many years to come. And while I agree with Tim that the solution to the orphan works problems should come from Congress, I don’t think the judiciary should strike down a settlement when it offers a reasonable, legal remedy to a recognized flaw in our copyright system. It is, of course, unfortunate that it will not be easy to extend this same remedy to other corporations, but as we established earlier, the digital book search market became a monopoly before the settlement for other reasons.
To put this all in perspective, let’s look at what would have happened if instead of this settlement, Google had gotten it’s fair use ruling. This would have opened up the “fair use bridge” for anyone to cross, now reinforced by the power of stare decisis. But ultimately, everyone else would still be 5 years and 8 million books behind the world’s most successful Internet company, so competition would still be limited. Furthermore, Google Book Search would have continued to be the same, relatively unexciting service it is today. With the settlement, Google Books becomes a powerful research resources for libraries and educational institutions. Every day users will see far fewer “You have reached your viewing limit” messages, and millions of otherwise inaccessible out-of-print and orphaned books will be available for purchase.
And so, while it isn’t perfect, I still don’t think we can ask for much more.164f