On Tuesday, more than a year after hearing the case, U.S. Circuit Judge Denny Chin rejected the revised settlement agreement between Google, the Author’s Guild and the Association of American Publishers regarding Google’s plan to create a digital library of the world’s books.
A digital library is a great idea. Access to information is a recognized social good, and facilitating that access is one of the truly revolutionary impacts of the Internet and the digital revolution. Restoring accessibility to out-of-print books and “orphan works” for which the copyright owner is unknown or unreachable could address a real issue.
But IPI had problems with the settlement agreement, as did the Department of Justice, the Copyright Office, and thousands of authors and their representatives. So we were delighted that Judge Chin correctly recognized the legal issues at stake in the settlement, and rejected it.
A big problem was that it had the effect of both changing existing copyright law and creating new copyright law. It would have taken rights away from authors that they currently have under existing law, and would have created binding legal structures that do not currently exist.
The problem is that law should be made by elected legislatures, not by a cartel of private actors. A few friends can’t get together and create a legal framework that binds other people and takes away rights that they retain under existing law, unless of course a court allows such a monstrosity to take effect. And sometimes courts do, such as in the tobacco settlement. But thankfully Judge Chin didn’t allow that to happen.
The judge did leave open the possibility that a modified settlement agreement might pass muster with his court. But a better option would be for Congress to finally get around to solving the orphan works problem through legislation.
Google’s proposed settlement also remains yet another troubling example of Google’s pattern of running roughshod over the rights of content owners. Essentially, Google still doesn’t seem to understand that property rights perform a crucial function in a market economy, and are not simply an obstacle to their latest effort to build a business based on free access to other people’s property.
*********
Today's TechByte was written by IPI President Tom Giovanetti