With the Google Books settlement still not settled, I thought it would be interesting to share some of the issues that may not be settled even if the agreement is altered to satisfy even the US government:
Per law.com:
"A DEAL WOULD ALTER the copyright universe. A decade of combat over the meaning of copyright in the digital age has produced few winners. Basic questions about how to value and protect content remain unsolved. How do content creators, for example, cope with the rapid technological advances that have freed intellectual content from physical media such as books, compact discs, and newspapers?
No one has suffered more casualties than the music industry, which has gone after infringers with furious desperation. From a litigation standpoint, the industry has won every battle, beginning earlier this decade when it sued file-sharing companies Napster, LLC, and Kazaa BV out of business and continuing through this year, when the Recording Industry Association of America won a $1.92 million verdict against Jammie Thomas-Rasset, a Minnesota woman who had shared music over the Kazaa network. From a business perspective, the strategy has proved both ineffective-a recent study in the United Kingdom found that the iPod of the average 14- to 24-year-old held 842 illegally copied songs-and a public relations fiasco. (Richard Marx, whose song "Now and Forever" was one of those that Thomas-Rasset downloaded, issued a statement in which he said, "I'm ashamed to have my name associated with this issue.") In response to the criticism, the RIAA has said that it doesn't intend to pursue new cases.
Given the difficulties that Google still faces putting together a deal, how likely is it that such a feat could be replicated for the music business? Von Lohmann at the Electronic Frontier Foundation is cautiously optimistic. He says that there has already been some movement toward a collectivized licensing of music. Warner Music Group Corp. is creating a service called Choruss, which will seek to cut deals for blanket downloading licenses to universities, and, eventually, individual users. Two other record labels have joined the project, which is still in the development stage. Any Choruss deal, of course, would probably be a strict licensing arrangement between record companies and the universities. Also, there is some precedent: Rights clearance member organizations ASCAP and BMI already license live and broadcast performances.
Many practitioners don't share Von Lohmann's optimism. George Borkowski, a Venable copyright lawyer who represented the RIAA in its copyright fights with Napster, offers a flat "no" when asked whether a group settlement could ever work for the music business. "The sound recording industry opposes blanket compulsory licenses as a way to deal with downloading," he says.
Winston & Strawn's Bridges, who often represents online media companies in disputes with the recording industry, agrees that record companies are fundamentally opposed to collective settlements. The music industry is much smaller in terms of the number of people or companies that control the copyrights, he says, and is "more accustomed to combat" than the book publishers and authors. Further, he says, the music industry itself can't even agree on which entity controls what rights. Depending on the use of the same underlying song, royalties are often collected by different companies, all of which would need to be mollified to get a group licensing deal done.
As Google has learned, blanket compulsory licenses are controversial in the book world, too. The Google settlement is framed as a nonexclusive deal, with other entities free to draft their own agreements with the authors and publishers. But critics say that publishers and authors will have little motivation to sign deals with Google's would-be competitors. Microsoft Corporation, which abandoned its own digital library project last year, said in a court filing that the settlement "confers on Google a new monopoly by authorizing Google (and Google alone) to engage in the wholesale commercial exploitation of entire copyrighted books."
UCLA law professor Douglas Lichtman says that Google is trying to make a "sweetheart deal" for itself that can't be replicated by a competitor through a standard contract. Foreign authors have cried foul, claiming Google doesn't have the right to scan their works. European litigation over the deal is ongoing. U.S. register of copyrights Marybeth Peters told a congressional committee that the settlement is "fundamentally at odds with the law," and that it usurped a role occupied solely by Congress.
In its opposition, Justice struck a similar note: "A global disposition to the rights of millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement." But, at the same time, the opposition held out hope for the parties: "A properly defined and adequately represented class of copyright holders may be able to settle a lawsuit over past conduct by licensing a broader range of conduct to obtain global 'copyright peace.'" Modify the settlement, the Justice Department seemed to be saying, and it would back the deal.
What needs to be done, in the government's eyes? First and foremost, address the antitrust issues. As it stands, Google and the authors and publishers have agreed to certain pricing algorithms and discounting agreements that will apply to out-of-print books. Justice takes a dim view of these "joint price-setting mechanisms." The parties will also need to reassure the government that competitors will also have access to all the scanned books, including the orphan-works collection.
The parties must also resolve a conflict that the government says exists between class members and absent rights holders. Under the current proposal, class members have no financial incentive to track down absent rights holders. The government says that making the deal an opt-in rather than opt-out agreement would solve this concern, but also notes that other solutions might work. The parties, for example, could use proceeds from the sale of orphan books to fund a search for these missing copyright holders.
If not quite a road map to a revised settlement, the Justice letter at least suggests an acceptable finish line. Can negotiators get there? It won't be easy, but neither was crafting any kind of deal in the first place. The good news, for Google, for the class members, and for those who hope a completed deal would spur other content providers to make their products universally accessible, is that the Google book search settlement's most powerful critic-the Justice Department-also supports its negotiator's broader aims. "A properly constructed settlement," Justice's filing says, "has the potential to breathe life into millions of works that are now effectively off-limits to the public."
