Posted by David Post:
Google Books Controversy Heating Up:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241730697
I suspect that we're going to be hearing a lot more about the Google
Books settlement over the next several months. There will be several
hearings about the fairness of the settlement terms in the Fall; the
Supreme Court will be hearing the case of Reed Elsevier v. Muchnick,
which [1]raises many of the thorny jurisdictional issues that are
embedded in the G.B. settlement; and a number of challenges to the
settlement are already being prepared and will likely be filed over
the next few months (see below).
It's a very complex set of issues, and I don't have a simple or
straightforward position on it myself. To begin with, it is,
technically, very complicated; to my eye, the best
summaries/discussions of the details come from [2]Fred von Lohmann
over at the Electronic Frontier Foundation, and [3]James Grimmelmann
at NY Law School; well worth a visit if you're interested in learning
more about what's going on.
Personally, I don't have a huge amount of sympathy for those who
complain about the "unfairness" to copyright holders in Google's plans
[see Robert Kunstadt's rather intemperate remarks in the National Law
Journal [4]here].
"Google took from the authors first�and belatedly now seeks to
legitimize its misconduct by this settlement. Instead, Google
should be punished hard, to deter such schemes. Otherwise, Google
will succeed where Napster failed. Respect for IP law�as well as
the rule of law in general�will decline. If an enterprising
homeless person pitches a tent in Google's corporate parking lot
for a 'Thomas Jefferson Used Book & CD Flea Market,' will Google
let it stay there (since it only occupies part of the lot)? How
about for a profit percentage as sweetener to induce "settlement"?
Google's conduct fits the definition of a public nuisance, and may
be enjoined as such. It imposes a small harm on a large number of
authors. The harm, copying only a portion of each work, is
calculated so as not to make it worthwhile for an author to incur
the expense of suing for injunctive relief. Google, despite its
cute slogan "Don't be evil," is like a large paper mill releasing
noxious gas over a wide area, sufficiently diluted that you smell
it but faintly. Like those banks that are now "too big to fail," is
Google really "too big to infringe"?
That is pernicious nonsense. The Google Books project has the
potential to become one of the great information-gathering activities
in human history -- every book (just about), at everyone's fingertips,
searchable and instantly accessible from any corner of the globe. And
we want to deter that?? Because that will decrease "respect for IP
laws"? Talk about putting the cart before the horse!! Because it will
inflict some sort of terrible "harm" on copyright holders? I'm not
terribly sympathetic. Copyright, as Jefferson stressed so long ago, is
a "social right" -- given by society because we feel it serves useful
ends (incentivizing authors to produce new creative works). When it
ceases to serve those ends, it should be eliminated. The Google Books
project is [5]another example of how copyright interests, these days,
do little more than obstruct useful innovations. There are 7 million
(or more) out of print books that Google would like to place on-line
where they can actually be accessed and read. I'm sorry if that
infringes someone's copyright, but really -- in what way is society
better off, exactly, from recognizing the copyright holder's rights in
this circumstance?
But that's not to say there aren't worrisome things about the project.
Grimmelmann points to some of them, particularly related to antitrust
concerns, in his paper. And separately, I've joined a group of
authors, organized by the EFF and Stanford's Center for Internet and
Society, that is preparing to challenge the settlement on privacy
grounds. As it stands, Google will be able to obtain a staggering
amount of information about what you and I (and everyone else in the
world) is reading, and I want to be sure that that information is
destroyed before it can be misused. More on that side of the issue in
a later posting.
References
1.
http://www.exclusiverights.net/2009/03/supreme-court-grants-cert-in-reed-elsevier-et-al-v-muchnick-et-al/
2. http://www.eff.org/deeplinks/2008/10/google-books-settlement-readers-guide
3.
http://www.laboratorium.net/archive/2008/11/08/principles_and_recommendations_for_the_google_book
4. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202430337726&slreturn=1
5.
http://volokh.powerblogs.com/archives/archive_2009_03_01-2009_03_07.shtml#1235918170
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