There is still one more step to take before diving into the substance of this bad settlement: Making the implicit assumptions explicit, and seeing if those implicit assumptions are valid. Here are the most critical ones. Some of them concern the procedural issues discussed previously, but most are at least partially substantive.
- The administrative mechanism assumes that the publisher always controls the electronic display rights to the work. Conversely, most book publishing contracts are either silent on electronic rights (as in Rosetta Books), reserve electronic rights to the author, or have been terminated by the publisher for going out of print. This is a particular problem for the purported orphan works that form the stated justification for the entire Google Library Project. Thus, for at least a majority and experience indicates a substantial majority, probably exceeding 75% of the works that might be scanned as in university library collections (and an even higher proportion of trade books), this assumption fails.
- The substantive underpinning of the entire settlement is that all books have the same "level" of originality the flip side of "information wants to be free." I will discuss this in much more detail later; for the moment, just keep in mind that regardless of what information "wants," commercial storytellers want to be paid... and lurking underneath this entire assumption is a concerted refusal to consider Feist's implications and the fact/expression divide.
- The settlement completely neglects the interests of an anthology/collection editor in the integrity of the book. This is a not-insignificant problem when the editor has added substantial creative contributions, such as introductions and afterwords, or addition of illustrations.
- The settlement system presumes that all books, and all segments of books, have the same mechanical license value (cf. 17 § U.S.C. 115). That's right: Without ever admitting that this is what is being done, the settlement turns books into music, and creates ASCAP and BMI in one swell foop. Considering that ASCAP and BMI have had substantial antitrust problems in the past, the failure to even consider antitrust in the future operation of this settlement especially for works that have not yet been contracted or published is more than a little bit disturbing... and reflects poorly on counsel's ability to properly represent the various classes.
After clearing away this underbrush, the next time I will dive into the substance of the settlement. Sadly, it gets much, much more disturbing very quickly. Ultimately, the settlement represents a triumph of administrative convenience over substantive rights... and, naturally, the writers are the ones who get screwed the most, but the proposed system is really very unfavorable to everyone involved. Except the lawyers.