Benjamin Burge, a 2L at New York Law School and a member of the PIBSI team, filed the following report on a recent audio seminar held by the Copyright Clearance Center on Thursday, December 10, featuring copyright attorney Lois Wasoff.
In her presentation, Wasoff outlined the differences between the original proposed settlement and the current amended settlement and their implications for individual rightsholders and for the settlement procedure. After reviewing the new deadlines associated with the amended settlement, Wasoff began by noting that the terms overall have not changed tremendously. She compared the settlement process to a tree: pruned, rather than chopped down.
The largest changes were definitional: many terms were either clarified or tightened to reflect complaints filed with the court. The best example is the scope of the works included in the settlement. By redefining the terms “Book” and “Insert,” Google and the plaintiffs excluded works from all nations except the United States, the United Kingdom, Canada and Australia. She posited that this was likely due to the huge and vocal outcry from foreign rightsholders, most notably in Europe, over their inclusion in the original settlement. Another clarified definition was that a work must be a stand-alone work to be included, removing periodicals and bound compilations of periodicals—most notably scientific journals—from the settlement. The definition of “Commercial Availability” was also clarified to better address many of these complaints.
Another area the amended settlement clarifies is the treatment of unclaimed works. Wasoff noted that the creation of the Unclaimed Works Fiduciary was a big step, but lamented that this position does not come with a vote on the board of the Books Rights Registry. In addition, there are changes to the distribution of the funds received for unclaimed works. Wasoff saw this change as an invitation for Congress to step in and potentially direct the Fiduciary. In addition to the fiduciary, Wasoff complimented the negotiators for adding publisher and author representation from nations other than the U.S., but asked why there was still no representation for libraries or educational authors.
Wasoff also addressed the changes made to the economic terms, noting that while there is now independent individual pricing, the overall price scheme remains the same, with only slight alterations to mirror the suggestions made by the Department of Justice. She noted that while the amended settlement specifically requires Google to allow third party resellers, it does not force Google either to share its digital copies or to allow third party institutional subscriptions, two objections often raised in antitrust objections. Furthermore, the amended settlement does remove Google’s most favored nation clause with the Registry.
Finally, Wasoff explained the few changes made to the public policy of the settlement, most notably the allowance of Creative Commons licenses and the right of the Registry to authorize more than one terminal per public library. She did note, though, that while the library additions seem altruistic, the increased terminals will also likely increase printing income for Google, clouding any claim of a generous motive.
I’m also informed that the Federalist Society held an evening conversation about the settlement on December 14, with law professors Richard Epstein and Scott Hemphill and Wilson Sonsini partner Jonathan Jacobson, but so far, there’s no audio or video of the event available online.