GBS: On the Open Rights Group’s Letter

The Open Rights Group is a kind of loose U.K. analogue to the EFF, standing up for online civil liberties against ill-informed laws. The differences are partly organizational: the ORG does mostly grassroots activism, whereas the EFF also litigates. They’re also a bit cultural: the ORG is somehow, indefinably, British in its style.

In any event, the ORG has filed comments on the Google Book Search settlement with the European Commission for its upcoming hearing. The EC is in an interesting position. On the one hand, it (along with its member states and EU locals) could try to block the settlement from going into effect. Yes, the settlement purports to be U.S.-only, but one might argue that it has extraterritorial effect, or that it prejudices the interests of foreign copyright holders in violation of international treaty law. If they acted on a coordinated, EU-wide basis, they could probably put enough pressure on Google to block the deal. (It’s the LICRA v. Yahoo! principle all over again.)

On the other hand, the EC is in some ways in a much freer position to act than the court in the GBS case is. As a legislative body, it can take the synoptic view and create a solution that takes everyone’s interest into account, rather than being bound by the strictures of class action law. (One could argue that it’s only the relative looseness of U.S. class action law that tempted the parties into going that route, rather than the more legitimate legislative one.) Indeed, that seems to be the tack the EC may be taking, considering changes to its copyright law to promote Google Books-like private solutions, quite likely including Google Books itself, but also open to competitors and nonprofit institutions on equal terms. (Then again, reading the questions for public consultation more closely, perhaps copyright reform itself is off the table. I don’t know the EC structure well enough to know for sure what’s going on.)

This is the backdrop against which the ORG writes, and its comments can only be understood in this context. The proposals themselves would often be inappropriate as arguments at the fairness hearing, but they make sense as input to the EC. ORG’s overall position is one of moderation: “ORG does not make a general objection to the proposed Settlement, but calls for clarification and amendment where appropriate … .”

The first major heading is privacy. Unlike the U.S. commentary so far, which focuses on substantive privacy threats, the ORG focuses on the EU legal framework, explaining to the EC why it should take a proactive role. It endorses the EFF’s privacy requests and essentially urges the EC to institute privacy protections by law unless Google shapes up and commits to them directly.

The second heading has to do with DRM. Of course, the entire Google Book project (for in-copyright books, that is) will be one of those cloud-competing services that are all but indistinguishable from DRM. For the ORG, this is a consumer rights problem, along the lines of the Berkeley conference from two years ago.

The third heading has to do with international development and the spread of knowledge. The ORG starts off by stating:

There is a problematic asymmetry associated with the inclusion of European works in GBS, but with no statement from the promoters of the project as to the availability of those works, or the works from any other jurisdiction, including the US, to European readers, and to readers around the world. At the very least, the Commission should question why US students, researchers and indeed purchasers should be able to access close to the entire corpus of the European written word, but European equivalents unable to gain access to European, US or other material. Paradoxically, this Settlement would mean that US-based researchers would have much greater access to out-of-print European works (defined as not commercially available in the US, which is important) than Europeans.

Note what a great point this is from an access-to-knowledge perspective, but how absurd it sounds if you have your head wrapped up in the class action litigation. European authors are complaining that the U.S. program will leak, undercutting domestic markets—but here’s the ORG saying that it ought to be just as available in Europe as it is in the U.S. In some ways, this is a classic copyfight, pitting copyright owners against open access advocates. And note that Google, which would love to expand the program beyond the U.S., enters this fight on the side of the open access advocates again. Again, the legislative character of the EC inquiry comes to the fore, as the ORG explains that “the Commission should see this aspect of the Settlement as having notable implications for matters beyond the strict application of international copyright law. “

Finally, the ORG takes up orphan works. Here, the ORG takes arguments that U.S. settlement followers are probably sick to death of, and puts them briefly in a European context. Thus, the ORG first sounds the alarm about the prospect of a Google monopoly:

As this Settlement is between private parties, others wishing to engage in conduct similar to that of Google will not be able to rely on the Settlement as a precedent, but will instead need to act as Google did - await the bringing of suit in similar terms to the original case against Google - and presumably seek a settlement or await trial for alleged copyright infringement. Therefore, the barrier to entry is a very high one. Google will, in accordance with the Settlement, have a licence that others cannot, without engaging in expensive negotiation or litigation, avail of, and of course for orphan works, such negotiations are impossible in many cases, and therefore others will have no assurance that they can ever be licenced to compete, putting them at an immediate and perhaps irreversible disadvantage.

Actually, I think the ORG could have gone even further here. In the U.S., we’re arguing over the parameters of U.S. class action law. I should think that the EC would have more right to be skeptical about how U.S. class actions might work. Assurances that others could do the same as Google has done and get similar settlements strike me as something that foreign regulators might be disinclined to believe on institutional grounds.

Next, the ORG reminds the EC that even if the settlement goes through, it’s not a full solution to the orphan works issues. Google, of course, would agree. In its policy-making role, the EC could of course also consider whether the settlement will make solving the orphan works issue in other ways more or less difficult, and the ORG asks it to. The letter closes with a suggestion that the Google Book collection could become an essential facility under antitrust law. I don’t know whether that doctrine is more viable in Europe than it is here, but the European antitrust regulators have indeed been more aggressive than their U.S. counterparts in recent years.

Great comments, James. As for essential facilities, it’s still quite unclear in the EU (so no surprise there) and academic opinion divides quite sharply on whether it has a separate identity. Much of what would have been thought (after the earlier cases on boats, trains and the like) to be possible candidates for this approach are dealt with through Commission statements or specific directives (e.g. the 2002 Access & Interconnection Directive for telecoms has elaborate procedures for the bulk of telecom issues that would otherwise engage EF or other competition doctrines.

If you’re interested, Antonio Bavasso’s book Communications in EU antitrust law does a good job of illustrating EU/US difference in the general area. Extracts are, of course, available via Google Books at