So we are one week away from what should be a significant step for copyright in the digital age. The decision rests with one court and its ruling will have significant ramifications for all. If rejected it will clearly leave Google exposed and given their investment they are almost certain to appeal, kick and squeal and probably continue to do what they believe is right –scan unopposed. If it is passed we see copyright being rewritten and the orphan works hovered up unfairly and a potential explosion of litigation.
The case was bought by the Authors Guild for the wrong reasons and their incentive to cut a bad deal paramount from the beginning. The publishers were concerned with protecting the rights they clearly owned and some would suggest care little about anybody or anything else. The UK, Australia, Canada have been sucked in deeper by their ‘parents’ into the Amended Settlement Agreement (ASA).
Now Google has stepped up to pre-state its case they say that the eBook business has plenty of competition citing coverage of the new Apple iPad, but they fail to mention that this competition is not about hovering up orphans and opting in by default or even scanning first and asking last. They state that they have spent millions to create a modern, digital equivalent to the Great Library of Alexandria and that they should be applauded not derided. It as if spending money makes everything right. They appear to be now claiming righteous and moral high ground deriding and sneering at protesters "many of those complaining about the settlement's terms [who] are not themselves class members."
Google claims that the settlement will never please all parties but that it is a fair compromise and reasonable and adequate to the class members. They also claim that the objectors have failed to identify the harms it will cause and offer no practical alternatives and competitors ignore their own market positions.
Google argues that ‘the opt-out feature of the settlement is of vital importance because that feature makes it possible for the plaintiffs and Google to establish a market for out-of-print books that otherwise simply could not exist in light of the prohibitive transaction costs of identifying and locating individual Rightsholders of these largely older, out-of-print books.’
As if now arguing on a technicality, Google state, ‘It is a remarkably creative settlement, beneficial to the parties and absent class members and the public, but it is also a settlement of the case the Court has before it’
The US Department of Justice has once again applauded the intent but clearly said the package is not good enough. Many have spoken up against it and others for it. Many just want it to be settled. We still believe it is a bad deal which at it core deals with absent plaintiffs for their own gain. Orphans are vulnerable and should not have mass adoption forced upon them in such an exclusive manner.
Perhaps the worst aspect of this dispute is that it's delaying what has long needed to be done, a revision of the Berne Convention on copyright, unaltered since 1979, to take into account the new digital technologies.
The parties in this dispute, particularly Google, could have pushed for Berne revisions but haven't because the settlement, however bad it may be for authors and publishers, offers something of advantage to each. Their private interests have trumped the broader public interest.
It's really strange that in much more stable times Berne was revised an average of once every 11 years, but in the last 31 years of unprecedented change, it hasn't been touched.
A major part of the blame lies with the U.S. Congress. When Disney and others gave them money in the late 1990s, they were only too happy to extend copyright protection for twenty years. But with no money being offered for good or ill purposes, they are unable to act.
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