Intellectual Property Law

The Google Book Search Settlement and its Implications

By Mike Madison

My attention wandered for a moment and I failed to post a link to the second of Pam Samuelson’s excellent Huffington Post analyses of the Google Book Search settlement:  “Why is the Antitrust Division Investigating the Google Book Search Settlement?”

This also seems an apt moment to observe that the real import of the GBS settlement and the outcome of the DoJ examination may have little to do with books.  Books are so, well, 20th century.  Books may even be 19th century; the iconic 2oth century cultural artifact for copyright purposes may be the popular song, especially if you begin to measure centuries in roughly the 50th year (1850, 1950).  Much is made of how the American Copyright Act is oriented to the proposition that copyright is needed to encourage the production and distribution of books, and other things are covered by copyright to the extent that other things are more or less like books.  But you could say much of the same thing about American copyright law and popular music, focusing not on the simplicity of Sections 106 (the owner’s exclusive rights) and 107 (fair use) and 109(a) (first sale), but instead on compulsory licensing and secondary liability.  The iconic 21st century cultural artifact for copyright purposes?  My bet:  the videogame.

The real import of the GBS settlement, in other words, may not be what it tells us about access to books (including digital books), especially “orphan” works.  Instead, what emerges as the architecture of GBS will tell us a lot about the acceptable architecture for comparable (but for the moment, hypothetical) massive assemblages of copyrighted material that are far more likely to attract widespread popular attention than the GBS settlement has attracted so far:  music, visual art, and combinations of both together with “user generated content.”

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Full post as published by Madisonian.net on August 28, 2009 (boomark / email).