GBS: To RIAA or Not to RIAA

Short post from the Authors Guild reacting to the Justice Department’s filing:

As you may be reading in today’s paper, the Justice Department in its filing regarding our settlement with Google continues to see legal problems with the settlement, focusing on class action law but also continuing to raise some antitrust concerns. We disagree with the Justice Department’s reading of the law. At the same time, it’s good to see the Department recognizes the settlement’s many benefits. In our view, it’s best for everyone that out-of-print library books be made available through reasonable, market-based means to readers, students and scholars. Without a settlement, that won’t happen. It’s also best that authors have direct control of the scans that Google has made, with the power to compel Google to hide, display or remove those scans. Without a settlement, authors have no such control. Google’s scanning and use of authors’ books would continue until the lawsuit was finally resolved. …

We also could’ve won. That would’ve been sweet. But here’s the thing: copyright victories tend to be Pyrrhic in the digital age. Our settlement negotiations went on with full knowledge of what happened to the music industry. The RIAA (the Recording Industry Association of America) won victory after victory, defeating Napster and Grokster with ground-breaking legal rulings. The RIAA also went after countless individuals, chasing down infringement wherever they could track it down.

It didn’t work. The infringement just moved elsewhere, in unpredictable ways. Nothing seems to drive innovation among copyright pirates as much as a defeat in the courts. That innovation didn’t truly abate until Apple came along with its iPod/iTunes model, making music easily and legally available at a reasonable price. By then, the music industry was devastated.

… it’s good to see the Department recognizes the settlement’s many benefits.

The lawyer Fred Wilhelms has amassed a lot of evidence about RIAA - Soundexchange’s management and their interesting understanding of benefits .

Very interesting post, and an ironic conclusion- legal victories on copyright are Pyrrhic. And maybe legal compromises (the settlement) on copyright are also Pyrrhic. No wonder Larry Lessig has been sounding so depressed lately.

The Author’s Guild’s post is misleading in several ways.

The Author’s Guild sued Google because Google scanned copyrighted works, which Google initially said was for the purpose of displaying “snippets” in their search engine. The Author’s Guild could have lost that suit, and they could have won it. If they had run out of money to pay their lawyers (which apparently they did not) they could have merely withdrawn it.

What the Author’s Guild did instead, is to negotiate a much, much larger publishing contract; which if approved by the courts, would enable Google to publish entire books as e-books, as print-on-demand books, and as parts of bulk package deals to libraries. This contract extends for the entire remaining copyright term of millions of works. The Author’s Guild is trying to rope in millions of copyright holders by demanding an “opt out or you’re automatically in” arrangement.

I do not call this giving authors “control” over their works—and Google is still scanning them. No one has determined what Google will do with all the works they have scanned that were published after the Settlement cut-off publication date of January 5, 2009, or the works of copyright holders who individually opted out of the Settlement, or the works of copyright holders who are citizens of foreign countries that were opted out of the Settlement. Or even the illustrations in most of the books opted in, where the illustrations have a different copyright holder than the text. The Author’s Guild did not, for example, get a clause inserted in the Settlement saying that neither Google nor the fully participating libraries (who received free scans of the books in other participating libraries), will use the works of copyright holders who opted out.

If the Settlement were approved, this would set a precedent for every other entity who wanted to scan and sell copyrighted books, to first do so, and then try to get copyright holders automatically signed up with a similar class action suit and opt-out requirement.

Meanwhile, since the “snippets” issue was dropped, the Author’s Guild has set no legal precedent regarding “snippets.” Any and every other search engine company can still scan copyrighted works, display “snippets,” and wait for a class action suit.

I would hardly call the Author’s Guild’s actions either protecting copyright, or preventing infringement from “moving elsewhere.”