What the Google Book Agreement Tells Us about Copyright

There's been quite an uproar since release of the proposed settlement agreement between Google and the Author's Guild/Association of American Publishers.  A lot of people are discussing the settlement itself (including us here at Ip's What's Up), but this settlement agreement tells us about more than just the relationship between the parties.  It also provides us a lens through which to analyze the current state of our copyright system.

Good Things

The best thing about the proposed settlement agreement is simply that it's a settlement agreement.   The parties have found a solution without going through the whole litigation process, a solution that makes each participant feel that they are coming away in a better position than if they continued with the litigation.  Page six of the settlement agreement expresses this well:

WHEREAS, Plaintiffs and Class Counsel conclude that this Settlement
Agreement is fair, reasonable, adequate and in the best interests of the Settlement Class in
light of the risks inherent in prosecuting the Action and the benefits obtained under this
Settlement Agreement.

I'm not necessarily talking about the actual settlement being good.  There's a lot of discussion out there on whether that's the case.  [The comments section of Lessig's post has some good discussion on the merits of the agreement, as does Medialoper.]  It's encouraging just to see private parties recognizing each others' rights and sorting out their differences without getting the government involved.

One commonly recognized purpose of copyright is to create a balance between the interests of creators and consumers.  Over the past decade, there has been a lot of criticism that copyright laws have lost sight of this.  The Google settlement, by focusing on creating the right balance, shows us that the copyright system can still work towards achieving this goal.

Wendy Seltzer suggests that the registry system created by the agreement seems more like something we should expect the government to provide.  But I disagree.  It makes more sense to me for the stakeholders to create a registry like this than to lobby the government for the creation of such an entity at taxpayers' expense.  The parties involved in this settlement are going to have a better idea of what's needed and of what's important for the registry than the government would.  Google has the funds (which the settlement requires them to use) for a large venture like this.   Additionally, as Lessig remarks, this arrangement allows "anyone who wants to build a competing and complementary database."  Besides, US collecting and performance rights societies aren't government run, and they seem to work well.  It's exciting to see the willingness of private parties to invest in the future of a copyright industry.

 

Here, We Still Need Some Work

The agreement also points to one glaring problem with the current copyright system: borders and boundaries.  Everything in the agreement only affects Google Book users in the United States, even though it affects authors from around the world.  This is because copyright, despite the many treaties, is national law.

The parties involved in the agreement brought suit in the United States  (District Court for Southern District of New York, to be exact).  The court does not have jurisdiction beyond the United States, and thus cannot make rulings or approve settlements that would affect laws in other areas.  This is good; we don't want the courts of one nation being able to dictate laws for other countries.  Unfortunately, the results of this division aren't always good.

Thanks to the Berne convention, authors from nearly every country in the world have their works protected in the US by US copyright law.  The same goes for their works in many other countries under those countries' copyright laws.  All the foreign authors whose works are protected in the US are part of the class involved in this agreement (unless they choose to opt out).  Yet, this agreement has absolutely no affect in their own countries. 

It seems strange to put geographical boundaries on something as open and location-agnostic as the internet, but it happens all the time.  Pandora isn't available outside the US.  Music fans around the world complain about not having access to the hundreds of music videos MTV posted online (and unfairly blame MTV for this).  Our laws are territorial, our communications are not. 

Unfortunately, the Google agreement does nothing to help in this area.  It's unclear if there is a forum that would have allowed the parties to come to an agreement applicable to the entire world.  Perhaps something like the International Arbitration Centre for Copyright & Image Rights (IACCI) could be utilized for this purpose.

Hopes for the Future

The Google settlement agreement leaves me with two main hopes for the future of copyright:

1. That the music industry can find a way to reach similar agreements instead of just suing the $&%* out of everyone and making the government their private task force;
2. That as agreements like this continue to be worked out in other areas of copyright, IP law, and trade, we can find some way to harmonize the world's access to information.