Patent Law

Metaphor as Conflict - the Google Settlement from a Mediator's Perspective

By Mary Zachar

As a mediator reflecting on the label 'Evil' attributed to the proposed Google Book Settlement (article by Tom McNichol in California Lawyer, Saving the World from Google: Public and private interests band together to fight a deal that, they say, would destroy competition on the Internet), I wonder under what alpha-tag Google might fall in Vickie Pynchon's new book, A is for Asshole, the Grownup's ABC's of Conflict Resolution.  Is there an E for Evil?

I am also curious about where this Evil metaphor might fit within Google, Inc.'s Senior Copyright Counsel, William Patry's new book, Moral Panics and the Copyright Wars, which asks that we look at the moral panic generated by such labels not as aggressors, but rather as mediators in the copyright wars. As Patry describes in his blog, copyright is a system of social relationships, and that 'the advantage in regarding copyright as a system of social relationships is that it focuses attention where it belongs: in mediating conflicts within that system… .'

If you would like some background and context use The Public Index, a project of the Public-Interest Book Search Initiative and the Institute for Information Law and Policy at New York Law School.  For audio listen to Pamela Samuelson's recent lecture, and for balance see the Google Public Policy Blog.

Here's how Google became the Evil villain:

In September, 2005, the Authors Guild, representing about 8,000 US published authors and screenwriters, brought a class action against Google The Authors Guild, Inc. v. Google Inc., No. 05 Civ. 8136 S.D.N.Y Sep. 20, 2005), claiming that Google's Library Project, launched as the Google Book Search, a project which scanned millions of in-copyright books from the collections of major research libraries, was copyright infringement. Google's goal at the time was to make indexes of the books' contents and to provide short snippets of the book contents in response to its users search queries.

In response to the lawsuit, Google temporarily suspended scanning, and agreed to allow copyright owners to submit lists of books they wish to be excluded. The Association of American Publishers then filed a second lawsuit (now coordinated with the earlier Authors Guild action) for copyright infringement, seeking injunctive relief, and this time Google defended arguing fair use, claiming that "snippets" from books were authorized under the Copyright Act's fair use defense Section 107.

Settlement efforts commenced in the Spring of 2006, and in the Fall of 2008, a lengthy (over 300 pages) agreement was finally reached between the Authors Guild, the Association of American Publishers and Google, establishing a complex new business arrangement. An Amended Settlement Agreement was preliminarily approved November 19, 2009.

The Settlement gives Google a license to commercialize all out-of-print books and to make up to 20 per cent of their contents available in response to search queries (unless rights holders opt-out). Judge Denny Chin held a Fairness Hearing on February 18, 2010, which has been continued to late June. Holding up the Settlement is the Department of Justice's Statement of Interest which asserts that the Agreement violates US anti-trust laws, and this along with many other objections has caused the fairness hearing to be postponed. As the DOJ argued in its recently filed Statement of Interest,

'This outcome has not been achieved by a technological advance in search or by operation of normal market forces; rather, it is the direct product of scanning millions of books without the copyright holders' consent and then using Rule 23 to achieve results not otherwise obtainable in the market.'

To the DOJ, this seems to be at the core of Google's Evil – that its position of dominance has arrived not by merit, but by self-help in scanning millions of books, without consent, and then benefiting from a settlement after the fact.

Is this Evil? Are there multiple interests at stake and who is supposed to represent these interests at the negotiating table?

It may appear unfair for Google to benefit by the Settlement which results in a privately negotiated compulsory license, using the class action status as a way to insulate itself from any future claims with respect to the use of the works, and making it the only source of a digital library. Yet Google, as a defendant in the lawsuit, did not construct the class (although some would say that it acquiesced because of the benefit conferred). Nor can it be responsible that it has not litigated the fair use defense for the benefit of all competitors. It is in fact the litigation and class action construct which allows a private settlement for a copyright infringement. The lawsuit, despite its class action nature, depends only on the relationship between the parties before the court and in the class. The court does not look beyond the class, although FRCP 23 does include representation guidelines built into class certification and court review of the settlement.

With neither libraries nor research interests as part of the class, can there be meaningful resolution of a copyright infringement dispute using a class action model?

The US Supreme Court recently confirmed a settlement reached under similar circumstances in ELSEVIER, INC., v. MUCHNICK,--- S.Ct. ----, 2010 WL 693679 (U.S.), 93 U.S.P.Q.2d 1719, a class action of authors against publishers claiming wholesale copyright infringement based on digitization of a data base of works. This mediated settlement also took over three years and yet it has not generated the same vitriolic response as the Google Books Settlement. So it seems possible to mediate the social relationships which inhere in the copyright system.

Then what's so evil about Google?

Maybe the answer lies in the nature of the copyright system itself. As Mike Linksvayer put so kindly in his Creative Commons Blog on November 16, 2009, 

'We hope that a socially beneficial conclusion is reached. However, it's important to remember why getting there is so contentious. Copyright has not kept up with the digital age — to the contrary, it has fought a rearguard action against the digital age, resulting in zero growth in the public domain, a vast number of inaccessible and often decaying orphan works, and a diminution of fair use. If any or all of these were addressed, Google and any other party would have much greater freedom to scan and make books available to the public — providing access to digital books would be subject to open competition, not arrived at via a complex and contentious settlement with lots of side effects.'

Zohar Efroni, who contributes to the Stanford Law School Center for Internet & Society Blog, notes in his 4/19/09 post that because Google does not own the copyrights in the books it digitizes, it's monopolistic position really only extends to infrastructure –

'its giant store of digitized content, together with smart and high-power logical and logistic commercialization tools. It does not have a monopoly over content….' 'Technically, it is a mere licensee, not even an exclusive one. The real ‘monopolists' here are, how surprising, the authors guild and the publishers' association. '

As he opines,

'In my view, it is premature to flatly condemn Google at this point. We still know too little on how this system will function in practice. To me, the most important lesson is that the process of public lawmaking has failed miserably in structuring comparable mechanisms for providing broad access, and at the same time, accommodating rewards for rightholders. It is not surprising that private actors with the necessary foresight and resources rush to fill this gap. What's the point of lamenting that the contracts they draft lack the checks and balances we would expect to find in public regulation? Prof. Samuelson calls the BRR ‘a new collecting society,' which implicitly hits the mark: Technically, the term describes the BRR's principal functions and responsibilities. One main difference is, however, that real collecting societies are, for better or for worse, highly regulated entities (in Europe all the more). This is precisely what the BRR is not.'

What seems clear is that the Google Settlement matters.

In another compelling blog entry in Publishers Weekly, The Google Settlement: Why it Matters,  finds that although the Google Books initiative may be deemed good for society in the sense that it "empowers users to seek out whatever they want to learn,

"the potential effect of the settlement terms cannot be ignored. Three areas he points to as matters of concern include: '(1) whether a handful of lawyers negotiating it can adequately represent the class members and the public interest; (2) the effective orphan works monopoly granted to Google; and (3) the risks presented by use of an opt-out class action mechanism and whether legislation is a more appropriate response. '

As Professor Grimmelmann observes,

'when search engines work right, they empower users to seek out whatever they want to learn. That's the exact opposite of broadcasting, in which a few big speakers choose what everyone else hears. In a world where everyone can self-publish, search engines turn what would otherwise be deafening cacophony into the best party ever, where every guest can instantly join the conversation that most interests them. That's good for freedom, and good for democracy. Building better search engines is a moral imperative.'

The problem lies in the Settlement, not the conduct per se which should be found fair use. As he points out, the Settlement goes far beyond just scanning and indexing and allows Google to sell full books, obviously an infringement. The settlement allows Google to sell out-of-print books unless the copyright owners object, while a competitor will need to get individual permission for any use. With respect to orphan works, by definition there is no one known from whom permission can be granted.

'The class action opens a door for Google, but leaves it closed for everyone else. That fact has always been the absolutely critical feature of the settlement. It makes the settlement exciting, because it means that millions of out-of-print and orphan books would become much more widely available. It also makes the settlement dangerous, because millions of copyrights would be collectively press-ganged into Google's service.'

The vote may still be out on whether Google's status as a private company with a desire to maximize profit while doing what consumers want is good or evil. Google did not define the class, nor is Google a fiduciary with respect to the members of the class. Instead, the publishers and authors are the class representatives, and may through the proposed Book Registry continue an institutional bias based on the social relationships between owners and their market. As a metaphor, Evil imbues conduct with intent to harm. Was Google's evil its initial conduct in copying the works in the first instance – even though it relied on fair use and many commentators agree that this defense has merit? Can we say that Google intended to harm the unseen interests in entering into a private settlement, court supervised, under the watchful eye of the federal court, Judge Chin, and the public? Or was this a skillful settlement, avoiding the slap of statutory damages for infringing over 7 million works, in exchange for a license to digitize, filling a consumer demand for access to digital works? And aren't registered works under the Book Right's Registry getting a large market share, 63%, for Google's technological savvy and marketing?

If Open Book Alliance Co-founder Peter Brantley, who heads the Internet Archives' Bookserver Project, a coalition made up of Microsoft, Amazon, Yahoo, Author Guilds and libraries, prevails in their opposition to the Settlement, we may see intervening congressional hearings before the litigation concludes. This may be the answer necessary to address all of the social relationships at stake in the copyright system.

Copyright is a limited monopoly, designed to 'promote the Progress of Science and useful Arts.' US Const. art. I, Sec.8, cl.8. It may be that some disputes can only be mediated in the forum in which the public's long term interests in democracy, free speech and free markets also occupy a seat at the negotiating table. With copyright, that venue is Congress. With attention now focused on the future effect of this Settlement and how it may impact all the stakeholders, mediation has served a purpose here. It has opened up the conflict to allow dialog and illumination towards positive systemic change, always a good thing from a mediator's perspective.

-MZ

Full post as published by IP ADR Blog on March 12, 2010 (boomark / email).