• October 8, 2009
    Moral Panics and the Copyright Wars
    William Patry

    I wrote Moral Panics and the Copyright Wars with the bold goal of changing the way we think about copyright. I set this goal not out of arrogance, but out of despair - despair over the way debates over the important social issues raised by the creation and use of works of authorship have degenerated into little more than election-year mudslinging. Language has been an important weapon in these tussles, as the warring parties attempt to demonize each other.

    I examine the history and myths surrounding the copyright, as well as various origin stories that attempt to find in the past people's present ideologies. I assert that copyright is a set of social relations, intended to serve the important social goals of furthering knowledge and creativity. Approaching copyright this way avoids the "them versus us" dichotomy we currently face where copyright owners claim copyright is a form of Blackstonian private property over which they can exercise absolute dominion, and conversely, where those attacking what they regard as excessive copyright protection regard copyright as an evil monopoly to be repealed.

    Instead, the book explains why copyright should be regarded as a government program, intended to provide incentives for socially useful purposes. As a set of social relations, we must accept that copyright should be regulated in order to ensure it is serving its valuable public purpose. This means that calls for stronger copyright, just like calls for weaker copyright miss the point entirely; we have need only of effective copyright laws, with "effective" being measured by whether our copyright laws are serving their intended purpose. I reject therefore the copyright equivalent of free market fundamentalism, in which it is asserted markets will always represent the most rational - and therefore best - outcome.

  • September 21, 2009
    Delays in finalizing the proposed Google Books settlement look highly probable according to experts following the class action lawsuit. The parties involved in the proposed settlement, which if approved could give Google expansive digital publishing rights, are now negotiating aspects of the settlement, according to The New York Times.

    In a recent press statement, the Department of Justice urged Judge Denny Chin of the United States District Court for the Southern District of New York to decline the settlement, and said that the "parties should be encouraged to continue their productive discussions to address those concerns."

    James Grimmelmann, an associate professor of the Institute for Information and Law at New York Law School and author of an ACS Issue Brief on the settlement, told The Times:

    The news out of this is that there are frantic negotiations going on in back rooms right now. The parties are scared enough to be talking seriously about changes, with each other and the government. The government is being the stern parent making them do it.

    Grimmelmann's Issue Brief explored some of the public interest concerns that have arisen from the settlement, such as who will control copyright ownership of "orphan works," which are books whose authors or rights holders cannot be found.

    In its statement on the proposed settlement, the DOJ also expressed concern about several aspects of it and urged the parties to "consider a number of changes to the agreement that may help address the United States' concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement's ultimate scope, providing some mechanism by which Google's competitors can gain comparable access."

    In a guest ACSblog post, Center for American Progress Senior Fellow David Balto responded to critics of the settlement, calling it "good for consumers" and urging the federal court to accept it.

  • September 14, 2009

    The deadline for most briefs regarding the Google Books settlement prompted a flurry of filings with the court. While Judge Denny Chin of the Southern District of New York began wading through the newly submitted reading material, the House Judiciary Committee held a hearing on the settlement. Among the most notable developments from the hearing was the Copyright Register's announcement that the U.S. Copyright Office opposes the settlement.

    The Copyright Register told the House Judiciary Committee:

    [T]he proposed settlement inappropriately creates something similar to a compulsory license for works, unfairly alters the property interests of millions of rights holders of out-of-print works without any Congressional oversight, and has the capacity to create diplomatic stress for the United States.

    The next developments in the settlement's review are likely to be the Justice Department's brief, due on September 18, and Judge Chin's October 7 hearing on the matter. 

    For further debate on the Google Books settlement's merits, see the ACS Issue Brief by Professor James Grimmelmann and David Balto's reply on ACSblog.

  • August 31, 2009

    Debate continues to rage over the proposed Google Books settlement. The subject, which was the topic of an ACS Issue Brief by Prof. James Grimmelman and a ACSblog reply by David Balto, was taken up recently by Steve Pociask, president of the American Consumer Institute Center for Citizen Research.

    The settlement would permit Google to give the public access to scores of "orphan works," or copyrighted material whose owners either are unknown or cannot be found.

    Pociask takes issue with the settlement

    [T]he current book search settlement gives the most dominant online firm a significant competitive advantage over its rivals, delays entry by would-be rivals and hands Google favorable pricing over other Web-centric competitors. The results would likely lead to market power that could permanently lockout competitors, thereby posing anticompetitive risks to the public. Furthermore, this would be accomplished by a single judge's decision, instead of through legislative means or public discourse, or market forces.

    When surfing the Internet, consumers find most of their information using search engines, and mostly using Google. Through Web site rankings and ad placement, Google already influences how we find Web content. Google also tracks and retains your Web site browsing history for the purpose of "behavioral advertising." Now, if this court settlement is approved, Google will know exactly what you are reading.

  • August 24, 2009
    With a federal court contemplating a proposed settlement of a lawsuit challenging Google's book search technology, Professor James Grimmelmann examines the details. In his ACS Issue Brief, now available in the new edition of Advance: The Journal of the ACS Issues Groups, Grimmelmann writes:

    For the past four years, Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site--you couldn't read the books, but you could at least find out where the phrase you're looking for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop. Then, last fall, the parties to this large class action announced an even larger settlement: one that would give Google a license not only to scan books, but also to sell them.

    Grimmelmann, an associate professor of the Institute for Information and Law at New York Law School, in The Google Book Search Settlement: Ends, Means, and the Future of Books, says several aspects of the proposed settlement deserve scrutiny.
    Regarding the treatment of "orphan works," titles where the original copyright owner can no longer be located, Grimmelmann states:

    The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.