Wednesday, June 10, 2009

US Justice Department Asks: Have We Been Googled?

News that the US Justice Department has issued formal requests for information to several of the parties involved in the Google Book Settlement would indicate that everyone is now looking hard at all aspects of the proposal. It doesn’t mean that the US government will oppose it, nor that the several Attorneys general in several states who are looking at the antitrust aspect will oppose it but it does mean that it will be fully scrutinized. It also means that Judge Denny Chin’s September Federal District Court date may also be further postponed.

Both the Wall Street Journal and New York Times report that the Justice Department has sent the requests, called civil investigative demands, to involved parties, including Google, the Association of American Publishers, the Authors Guild and individual publishers.

We must note that although the Google Book Settlement is a US only issue the deal will have a global impact on the digital world, copyright and will be difficult to unravel if we get it wrong. We welcome the investigation, the debates that are ongoing and some may say that we have seen with some of the recent announcements, the GoogleWorld is not always what it appears at first sight. Google’s intent to be the information indexer, the search source, the repository, the library, the bookseller and the advertising revenue manager does beg the question what’s left.

1 comment:

Michael W. Perry said...

You wrote: "We must note that although the Google Book Settlement is a US only issue..."

That's right only in the limited sense that the settlement can only impacts U.S. copyrights. A U.S. federal district court can't alter how the copyright laws of other countries are applied within their borders.

But the "U.S. copyrights" impacted by this settlement are not just formal copyrights given U.S. citizens or foreigners living here by our copyright office. They include U.S. copyrights automatically granted by treaty to the citizens of the some 160 countries with which we have treaty agreements. Publish a book in India and you automatically acquire a U.S. copyright. You need not file any document or pay any fee. That's a marvelous aspect of those treaties.

But keep in mind a perverse result of those treaties. They don't permit a country to treat treaty-granted copyrights any different from those it grants its own citizens. The assumption was that countries would treat their own citizens more favorably. But that treaty obligation works in reverse. The settlement can't screw the U.S. authors without screwing all such authors om the world. That is the chief sticking point of the settlement, not the muddled anti-trust implications.

This means that virtually everyone who has written a book published any where in the world will have their U.S. copyright castrated by this settlement. Because of the perverse 'opt-in if you don't formally opt-out' provisions, far-distant authors have never heard of the settlement will be hurt. All Google need do is find a copy of that book, and with a willing library, it doesn't even need to buy that copy.

You are right that this settlement could "unravel" international agreements and the good will on which they depend. Google's scheme depended on other countries not knowing of what the settlement meant until after it was approved. The four-month delay I and six other authors got the court to approve ended any chance of that. European politicians now know what the settlement means and have begun to act.

Google's lawyers also made a major mistake. They assumed those they want to manipulate are stupid. Google had hoped they would counter this settlement with something similar, something to screw obscure U.S. authors, allowing Google to reap most of the benefits. But Europeans aren't interested in reading obscure American books. They are interested in reducing the impact Hollywood has on their cultures.

That's why they're will hit us elsewhere. There's not much money to be made in displaying out-of-print works. Google knows it can only profit from them by being ruthlessly efficient and cheap.

But if this settlement is approved, Europeans will almost certainly hit us where it hurts most. They'll weaken copyright protection where we make the most money: in movies and music. For that they'll be loudly applauded by virtually every member of the creative classes in their countries.

Because of the issues of orphaned works and display on the Internet are so closely linked to existing treaty obligations, there is only one way those issues can be settled. A mere federal court can't do it. Lawyers in the Justice Department certainly can't do it. Even Congress can't legislate an answer for all the world's writers. These issues have to be dealt with by amending those treaties, taking care to be fair to all involved.

--Michael W. Perry, author of Untangling Tolkien