One of the privileges of access to what we cool kids call the “back end” of Troppo is that when I write a long, long comment, in an old thread that has taken a new direction, I can make it the start of a new thread. As I’m doing here. Note that the comment originally arose from disagreeing with John Walker who supported the scuttling of Google Book Settlement. If you’re interested in that and don’t know of it, it’s fascinating and written up here.
As ever, you know the rules. Please ensure all comments are brief, well expressed and in agreement (or strong agreement) with my post. This is Troppo, AKA ClubPony where disagreement is quietly frowned upon and, if persisted with, can lead to the withdrawal of access to the cucumber sandwiches.
It’s true I don’t understand the Google Book Settlement in detail. So all my comments should be understood in that context. Perhaps if I took a month out of my life to understand it, and the options fully, I’d change my mind. Then again only professionals in the area – like Pamela Samuelson whom I met on an occasion and thought was on the side of the angels (of more openness) – can aspire to that without disrupting their lives. So I’m prepared to chance my arm, as we all do even when we think we know all there is to know.
I’m afraid I’m incensed by the pettifogging self-indulgence, self-righteous, small-mindedness, and greed for tiny morsels of financial gain of the copyright crowd.
The story from my point of view is that Larry and Sergey spent $400 mil of Google’s money with, it seems, not a great deal of thought of Google’s financial gain, in pursuit of a dream. Now the dream was a silicon valley rich boy’s dream. But it’s the same dream as Thomas Jefferson’s – to liberate the world’s knowledge for the betterment of the species and the greater glory of the creation and the creator if there is one.
I don’t even know precisely that vision in detail, but it seems to me that at that stage Google had no restrictive intent whatever. Their project was available to anyone else to copy – in whole or in part. Moreover, consistent with the ‘fair use’ legal doctrine they were relying on, they would have honoured anyone’s right to prevent it from distributing their copyright. They would have distributed orphan works, quite possibly for nothing. They may well have desisted from monetisation given their established practice of doing the same in many other areas.
But the immense and multifarious structures of commercial society – and perhaps Larry and Sergey’s desire for further riches – would have pushed them towards further monetisation. And company law would have placed that duty on Larry and Sergey as fiduciaries of their shareholders. Then another arm of commercial society reached out. Copyright owners and authors (whose involvement at least in this country is virtually always assiduously managed by corporate copyright interests and their well funded comms teams).
They stood to lose nothing from what I can make out, but they saw the opportunity to make some small bucks out of this from copyright royalties on things that had long disappeared from print. That this involved torching the possibility of a free and open database of all the books written in former centuries? Well you can’t make an omelette without breaking eggs. These are rights that would not have existed except for copyright owners successful campaigns over the decades to extend their copyright from 14 years at the beginning of the eighteenth century to lifetime plus decades more by the late twentieth century – a term that is unjustified by the justifications usually put forward for copyright – there is no ‘incentive to create’ from extending copyright well beyond the death of the author.
Because the corporate copyright lobby went after all this the result was a much more difficult set of choices in which a class action in effect made law for the country or the whole idea went back into storage indefinitely. That was a very unfortunate development. As I said at the outset it’s true I don’t know all the detail of the agreement. Nor do I expect I’d like it all. Nor am I naïve about Google’s motives or conduct – at least after the copyright lobby came after it. But at least from what I know it would have been much better to proceed with than the alternative which is bleak.
As for concern about usurping Congress’s right, one feature of the American system is that courts have had a larger role in such law making, not least in making fundamental law as they have in great constitutinal cases like Roe v Wade and Brown v Board of Education. Ancient Athenian courts too often sat in judgement on acts of the ‘legislature’ ie the Ekklesia.
So while I have some sympathy for the argument that it was Congress’s job, we all knew Congress was and is unlikely to do its job and we can at least think of this as in the spirit of Montesquieu and the founding fathers who quite liked the idea of jurisdictions overlapping and competing with each other to some extent. The other point to make is that if it really is Congress’s job, it can legislate and remake the rules after the event. (And because the money amounts are not large if compensation were involved it probably wouldn’t be a large consideration – even for a cash strapped government.)
I’d add in that context that I’m deeply uninterested in monetary measurements of the importance of this. I see it largely as a cultural, and indeed, at the risk of sounding grandiose, a spiritual matter. (Of course if you’re paying attention, you’ll know I’m cheating. If the numbers were large I’d spin that my way too ;) So let me scale it back and say that the value of this measured by money has never been a big consideration for me.)
Meanwhile CAL and it’s Chairman Kim Williams are out in force in today’s press defending, in their usual mendacious way, their outrageous purloining of $15 million from Australia’s schools, libraries and universities not to pay authors or copyright holders as is its mission, but to run political campaigns to keep up the protection racket it has built for itself out of the thicket of nonsensical rights ‘fair dealing’ as opposed to ‘fair use’ provides it.