Sunday, 20 September 2009

USA pulls punches in Google Book statement

The US government filed a statement on Friday recommending that the court rejects the Google Book Settlement in its current form. This looks like a ‘no’ but actually it is really a ‘yes’. The government, it makes clear, wants this digital resource to happen. The statement says that there have been three types of objection to the Settlement: violation of competition law, failure to fulfil the requirements for a class action and violation of copyright law. It then proceeds to focus on the first two issues, leaving copyright law to fend for itself. Is it signalling that copyright law should be ‘addressed’ but not be allowed to stand in the way?

The nearest the statement comes to exploring the copyright questions is when it discusses the concerns of foreign rightsholders:

The United States also believes progress can be made with respect to protecting the interests of foreign rightsholders. Google has already indicated that it will take steps to address the concerns of foreign rightsholders, though, to date, those actions do not appear to have addressed the concerns of the United States’ trading partners, which believe that an opt-out regime for foreign rightsholders is prohibited.
The statement goes on to say that the parties should consider an opt in, but doesn’t say that this is a must. In fact, where the statement proposes several solutions to satisfy the class action rules, all proposals include an opt-out element to a greater or lesser extent.

It is surprising that the US government should, of all things, make no attempt to face the fundamental constitutional question posed, for example, by Marybeth Peters of the Copyright Office that the Settlement could be encroaching on the legislative function of Congress. One thing is clear: by avoiding this issue, the government is refusing to block the Settlement on those grounds. Had the government accepted this argument, the Settlement would have been dead in the water. As it is, the specific demands the statement makes are relatively limited: Google should share this business opportunity with other companies and the class action rules need to be satisfied (for which the statement offers the parties a choice of proposals: some are far-reaching but others are relatively painless).

The fact is, as the statement makes abundantly clear, the United States government badly wants to see this digital resource become a reality: ‘The United States strongly supports a vibrant marketplace for the electronic distribution of copyrighted works, including in-print, out-of-print, and so-called “orphan” works.’ For the USA the Google Library Project is a business opportunity that is simply too good to miss.

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