It simply regurgitated all the threadbare arguments contained in the many submissions from those parties who were against the Agreement from the start - mainly authors, foreign publishers, and..er...Microsoft!
It was a victory for the 'copyright is power' brigade, 'and that power is MINE!'
It is, in fact, quite anti-Google, for all the reasons that continually get trotted out in any debate involving this frightening behemoth - 'effectively a monopoly', 'privacy concerns', etc. But what it quite evidently doesn't do is explore in any depth the real benefits of the Agreement in the way it would have harnessed contemporary technological power to liberate locked away content in 75% of the world's books published since year dot.
Those 'orphan' works (still in copyright but out of print) reside in a fenced off museum whose key has long since been thrown away. The Settlement Agreement would have made them - all of them! - discoverable, searchable and available for a fee, to the world's readers, researchers, libraries, students. Rich or poor, educated or not. And the majority of that fee was to be recycled back to authors, publishers and other copyright beneficiaries.
The Judge gives far more weight to the permission argument than it deserves. Google scanned copyrighted works without permission, quelle horreur, and now cannot really be allowed to benefit commercially from an effective monopoly on access.
The problem with the permission argument has always been its absolute one-sidedness - all power to the ruler; none to the people. Copyright ownership has public obligations as well as private benefits. An entrenched permissions culture, without clear limitations and regulations, is private ownership taken to extremes. It works against the public good rather than for it, which is a perversion of the real meaning of copyright. There's no balance there.
Judge Chin opts for 'opt in', which would allow copyright owners to chose whether they want to be part of the system or not. But the whole structure and integrity of the proposed Agreement is built on 'opt out'. It's universal, comprehensive, all the world's books at your fingertips. That's the whole point. It simply can't be inverted like this without being essentially throttled.
It's a conservative, profoundly disappointing, and quite frankly bad, decision.
If not now, when? If not Google, who?
6 comments:
Is an interesting judgement Peter, and although I am still working my way through it, I agree with your initial assessment. Having just finished reading the iiNet 'secondary infringements' case here in Australia, I am still of the view that our legislators and judiciary are woefully unable to keep pace with the technological developments that put pressure on the intellectual property system.
I agree that this judgement represents a crying shame in the way copyright could begin to be remoulded to (what I think) were its original intentions. It should always be remembered that copyright is not a moral right, but a temporary economic right granted by the government. The only justification for such a monopoly right is the expectation that it incentivises the creation of works (although new economic literature challenges that assumption too). It has always been my firm view, however, that commensurate with a right to control reproduction should be an obligation to maintain supply to the market; otherwise someone else willing to do so should be able to.
The problem with orphan works is an interesting one, and although probably smaller in Australia, is probably a big issue in the US. I see the Google book scanning project as potentially being like a 'statutory licence' - the kind we see in the music industry. This way the issue of permission is removed entirely, with Google able to effectively maintain the supply of these old books to the market, and a payment being generated to the IP holders. Once the technology allows it, permission shouldn't be an issue any more.
Thanks Adam. Your point about a statutory license in the music industry is akin to the stat license for educational copying in Australia, which is administered by CAL.
It works exceptionally well. Chin's view that Congress should sort this issue out in the US flies in the face of reality. Twice now Congress has had a go at orphan works but backed away from reform judged as too hard. The notion of compulsion doesn't fly in US culture, as we know.
Another point that is worth pondering: what if Google had continued scanning, as it did initially, under a fair use presumption, and defended itself in court when challenged, instead of negotiating an Agreement which has now backfired?
You are right again Peter, the statutory licensing scheme for educational works (administered by CAL) seem to work well - or at least less badly than other parts of the IP industries. Again, it takes permission out of the equation, which seems most often to be the stumbling block in lots of IP disputes.
Maintaining a constant electronic supply of every book ever published (as envisioned by the Google project) is, to me, mind-blowing in its scale and ambition, not to mention the potential good it could do for the world.
I too wish Google had taken the different route and argued a fair use exemption - it is about the only private user with the resources to mount the necessary legal defence. We mere individuals will never be able to challenge IP holders through the judicial system, nor have the resources to lobby legislatures.
And maintaining the narrow mindset that is so typical of content producers, I see today that AFACT have lodged a High Court appeal over the iiNet decisions. Am hoping iiNet can hold out for one more round - this must be getting expensive!
Also, I kept holding out for a blog post on your thoughts following the Borders/A&R demise Peter, but one never eventuated!
Ha! On RedGroup I couldn't think of anything original to say!!
There was a great piece in Crikey mid last year about how the private equity owners (PEP) were loading it up with debt, which I circulated on twitter and Facebook. I thought it captured the essence of the problem pretty well.
How could any bookselling operation manage a huge lump of debt as well as deliver profits/cash? Booksellers, no matter how well run, which RGR obviously wasn't, are barely profitable anyway. Margins are wafer thin. It was simply a matter of time.
Here is the Crikey piece:
http://www.facebook.com/notes/peter-donoughue/redgroup-and-private-equity/1612168220936
Post a Comment