Wanting to use a small part of the proceeds from an armed robbery for good causes does not make someone a good person, it makes them an armed robber.
Turning to the Google Book Settlement, the work of literally hundreds of objectors from around the world seems to have paid off. This week, the New York Judge in charge of the case ruled that it did not satisfy the legal test of being fair, adequate and reasonable.
The background to the Google Book Settlement is familiar to many people and ICOMP has written extensively about it in the past. To cut a very long story short, the proposed settlement – which would have needed to be sanctioned by a US Court – was intended to let Google off the hook for having scanned (and used for search purposes) over twelve million books without having obtained the approval of the copyright owners in advance, almost certainly in flagrant breach of international law. The settlement was also forward looking and purported to give Google a unique licence to scan and use so-called orphan works – thereby giving Google a monopoly for the commercial use of the works and the data they contain.
Literally hundreds of objections flooded in to the New York Court from around the world, including from France, Germany, Belgium, Italy, Spain, UK, Switzerland, Japan and New Zealand as well as from authors and other concerned parties in the US and Canada. European Governments objected, as did the US Department of Justice. Few voices in support were heard.
The proposed settlement was complex – at a public hearing held by the European Commission in September 2009 even its principal architects didn’t seem to understand all of its provisions (or at least pretended not to). The concerns were wide-ranging and focussed principally on:
• how it would overturn accepted notions and international agreements relating to copyright (it would “expropriate rights of individuals involuntarily”),
• how it would have major anti-competitive effects by entrenching Google’s monopoly in search (“Google’s ability to deny competitors the ability to search orphan books would further entrench Google’s market power in the online search market.”) and,
• how it created significant privacy concerns by allowing Google to track what people were reading (“The privacy concerns are real”). (Quotations are from the US Court’s Opinion.)
The US Court agreed with the European and other objectors and found that the proposed settlement was not fair, adequate and reasonable.ICOMP and others will review the fine detail of the judgment over the coming days and weeks. Although a long judgment, it is necessarily condensed and its implications will need to be carefully considered. In the meantime, there are a number of conclusions we can already reach.
First, this was a US Court procedure, based on US rules and considering primarily US interests. That is not a criticism – Google deliberately tried to structure the settlement so as to avoid other jurisdictions. What it shows is that the online ecosystem is global and that European authors and publishers (and those from other parts of the world) were denied the chance to defend their interests on their home territory, and had to do so in the unfamiliar forum of a court in New York. But as a result, they have achieved what they set out to do.
Second, the attempt to dress up the settlement as a way of bringing old books to life has been seen for what it is. Of course, everyone wants to have better access to scientific and literary works. It was at best condescending to suggest the objectors were opposed to disseminating of knowledge. The concerns were that Google was not being straightforward in describing its motives. The small print of the proposed settlement revealed that this was primarily about the world’s largest online advertising company obtaining massive competitive advantages through what the US Court called “wholesale, blatant copying without first obtaining copyright permission”.
Third, what happens now? Millions of works have been scanned already and Google has the data and is using it. To our knowledge, Google has no intention of voluntarily putting right these wrongs and so will maintain its competitive advantages. Whilst the refusal of the US Court to approve the proposed settlement is great news for IP, competition and privacy, it does not tackle the de facto monopoly achieved by Google through the unauthorised exploitation of property belonging to others. One of the objectors wrote to the US Court that Google’s negotiating position was “So, sue me”. We wait to see the evidence of a change in that attitude.
David Wood
ICOMP Legal Counsel
