Google Book "Settlement" is Bad for Law, Copyright owners and Users
Many have asked my opinion of the Google Settlement. I join the broad opposition to the “settlement”: This is a bad deal for everyone other than for Google (which will become an entrenched monopoly). It is also bad precedent, taking legislative prerogatives, the property rights of millions of people, and important commercial choices, and placing them in the hands of a few lawyers, a few companies, non-representative organizations, and a judge.
This is not a settlement of a judicial dispute, it is an attempt to reorganize and concentrate an industry into the hands of one company and its co-venture partners (former plaintiffs) without the participation of most of those affected by it. It is also legislation conducted in a courtroom.
The Google Settlement is a bad deal for everyone except for Google. For Google, it eliminates the cumbersome need to contact copyright owners for permission to copy their works, and the need to worry about their suing if Google acts without permission. For all companies who want to compete with Google, those needs remain. Google obtains a huge market advantage. It may be cumbersome to deal with property rights, but that is no cause to trample on them. If carried out, the deal will create a repository of digital books but do so by wildly restricting the rights of copyright owners to control their own property, and by creating a new monopoly – Google.
The settlement terms are over one hundred pages long. Indeed, very few people have actually read the “settlement”. No legislature has approved or drafted it, and none will be asked to do so.
It is drafted as a complex commercial transaction. That, of course, is what it is. But those who are copyright owners: did you authorize Google and the narrow organizations that sued it to represent you in a commercial deal transforming your rights? For most, the answer is no.
There are so many, obvious public policy objections that it is almost not necessary to mention them, but let me start with two concerns.
First, the “settlement” purports to bind copyright owners who, by the parties’ own admission cannot be found or identified. This is not an issue of how many of them there are, but supposedly about the difficulty of establishing proper provenance through analysis of transfers, inheritance, and the like. But if Google cannot find them as part of a billion dollar project, how are they expected to identify their interests, hire a lawyer, and do so before the date set for withdrawing from the “settlement”?
Second, the “settlement” purports to resolve claims that do not yet exist. This is not a case where bad acts have occurred, but damages are not yet manifest, such as in some mass tort litigation. This settlement covers future conduct that, if it occurs, would infringe a property right. Even Google (a huge company with massive assets) has not yet copied more than a small fraction of all books protected by copyright law. If the settlement were approved, it would cover all copyright owners in all books registered in the U.S. Copyright Office, including those that have not yet been copied by Google. This reaches too far. In my opinion, these uninjured owners could not even file a lawsuit against Google if they wanted to do so since no infringement has occurred in reference to their works. But they purportedly are bound by the result of a lawsuit they never authorized. Do not let advocates of the settlement claim that this is like class action litigation in mass torts – in those cases the class only covered people that had been affected by wrongful acts at or before the time of the lawsuit.
Consider this: You own a house in a large subdivision. Big Company (Google) plans to build towers on each property in the subdivision to create a commercial product for its use. There is no government action or regulation involved. Big Company is sued by three landowners on the north side of the subdivision whose property has already been wrongfully invaded (you are on the south side and live in pristine ignorance of the plan). The plaintiffs and the Big Company transform the case into a class action covering all owners in the subdivision and “settle” it, giving Big Company the right to invade every lot in the subdivision, if it pays a small standard fee and a royalty for some of its future profits One year later, the crew shows up on your property and builds a tower authorized by the “settlement.”
Do you have a right to prevent them from digging up your yard and building their tower? Do you have a right to complain that the damage to your property value was far greater than to others because your lot was expensively landscaped (e.g., more valuable)?
Not under the Google Settlement. The settlement purports to authorize future and past infringing acts, rather than simply to settle claims arising out of prior infringement. It gives Google the right to “go forth and infringe.” This not only perverts the idea of class action, it is unfair to the millions of copyright owners who were not consulted and cannot truly participate. The unfairness lies in taking my property without consulting me and paying for it without distinguishing my loss from the loss suffered by others
Google was prepared to defend the lawsuit by claiming that copying books was fair use because it was not selling the copies, but only access to them as a commercial indexing tool to support a lucrative advertising and search engine business. There might be reasonable debate on this in law, but the settlement gives Google that right without the contest and effectively excludes any ability of copyright owners to contest the issue because of the economics involved. It also gives Google the right to copy and distribute some books - clearly not a fair use. I think it is unfair (and against the law) to take my property and to place me in a position where realistically I cannot effectively complain.
But Google might argue – the settlement gives you the right to withdraw the work if you choose. The settlement does not actually do so, but this is a form of an argument Google has made for years in all contexts: “we have the right to do what we want with your property unless or until you complain about our conduct.” This argument turns property rights upside down. Clearly, property rights grant a right to exclude others, but recognition of a property right in law also assumes the willingness of those in society to respect and avoid trampling on that right. The Google Settlement takes that away: my rights become your privilege.
Consider this: I see your car parked on a public street and decide to drive it. I enter the car, start it, and drive off, leaving you a note that, if you find me and object to my use of your car, I will return it. You find me and I return the car. Have I done anything wrong? Of course.
The Google Settlement adopts the view that property rights are merely a right to object and not a right to expect that people should respect them. This is a terrible change of perspective that is unfair to the millions of property rights owners involved.
It also effectively strips away the property right. Why? Consider what you as a copyright owner will do as Google marches on with its system. If you “withdraw” and sue (assuming that you can), what is the effect of being removed from Google’s all encompassing index system? One commentator observed that an “orphan work” removed from Google’s massive system is truly gone. Would you elect to do that for your work? Most will not. The settlement gives Google effective control over other persons' property.
There is more to say, but that is for another blog.