The first large scale private attempt to both resolve the problem of orphan works and at the same time create new revenue models in the market for books has failed. This week, Circuit Judge Denny Chin rejected the Google Book Settlement in an 48-page-long ruling (PDF). Whether an approval of the so-called “Google Book Settlement” would have been for the good or the bad was highly controversial (see “Pamela Samuelson on the Future of Books in Cyberspace“) and the related discussions have not been futile. The whole Google Books controversy highlights the opportunities and dangers of all-embracing and essentially private regulatory frameworks for the access to books in the digital age (see “Angry Librarians: The eBook User’s Bill of Rights“).
Many blogs specialized on IP issues have immediately started to discuss the short- and long-term consequences of this decision so that for an general overview I just recommend some of these postings:
- The 1709 Blog: Google Books Settlement hits brick wall
- Scrivener’s Error: The Settlement Is Dead; Long Live the Settlement Negotiations!
- Balkinization: Google Books Settlement: Copyright, Congress, and Information Monopolies
- Copyright Litigation Blog: Google Books Settlement Rejected, A Waste for the Blind
- James Grimmelmann: Inside Judge Chin’s Opinion
Grimmelmann is the only one of these commentators that also briefly mentioned the international dimension of the ruling. He summarizes as follows:
The most specific point about how their interests differ from those of domestic copyright owners is a point made by various international publishers, that they will face a more difficult problem searching United States copyright records, due to historical twists in our law on when registration was required.
Then Grimmelmann points to the following passage in the settlement (p. 43), which leads him to ask whether “the fact that foreign rightsholders objected, just by itself, cuts against the settlement?”:
In any event, I need not decide whether the ASA would violate international law. In light of all the circumstances, it is significant that foreign authors, publishers, and, indeed, nations would raise the issue.
Judge Chin seems to particularly add authority to statements by collecting societies, explicitly mentioning the German VG Wort and then listing several other countries (p. 41-42):
VG Wort, a German “collecting society” representing authors and publishers of literary works and the fiduciary owner of some 380,000 German authors and 9000 German publishers, notes that many foreign copyright owners remain members of the class because they registered their works with the U.S. Copyright Office. (…) Indeed, France and Germany, as well as many authors and publishers from countries such as Austria, Belgium, India, Israel, Italy, Japan, New Zealand, Spain, Sweden, Switzerland, and the United Kingdom continue to object to the ASA, even with the revisions.
Chin also mentions concerns that the Google Books Settlement could “violate international law, including the Berne Convention and the Agreement on Trade-Related Aspects ofIntellectual Property Rights”. In my view, this is remarkable since it demonstrates the direct and unfiltered influence of international treaties on the formulation of national rulings. And while not finally deciding with respect to the transnational dimension of the settlement, Chin obviously felt the need to reject Google’s argument that the settlement was about the United States copyright interests only:
Google responds that “this case is about United States copyright interests. It’s about uses of works in the United States.” (Hr’g Tr. 157-58 (Daralyn J. Durie)). This argument, however, ignores the impact the ASA would have on foreign rightsholders.
In a networked information society, copyright issues are inherently issues of transnational governance. And even when attempting national solutions this transnational dimension cannot be simply ignored.
My favorite Google Books expert, Pamela Samuelson, has expressed her analysis of the rejection of the Google Book Settlement in an interview the Chronicle for Higher Education. While recommending to read the whole interview, let me only quote one paragraph referring to the transnational dimension and conflicting interests among stakeholders:
The thing that surprised me about the opinion was that he took seriously the issues about whether the Authors Guild and some of its members had adequately represented the interests of all authors, including academic authors and foreign authors. That was very gratifying because I spent a lot of time crafting letters to the judge saying that academic authors did have different interests. Academic authors, on average, would prefer open access. Whereas the guild and its members, understandably, want to do profit maximization.