16 November 2009

Google Book Search Settlement

Settlement 2.0: The Discordant Melody Remains the Same

The Settlement (in essay form)
The Lawsuit (in essay form)

Version 2.0 of the settlement has arrived. It's as much of a monster as was its predecessor, and really does very little to actually address the concerns that purportedly led to the changes. If I was actually a member of the Authors['] Guild — I'm eligible, but have chosen not to join — <SARCASM> I'd seriously think of using my vast royalty earnings and endless free time <SARCASM> to start a recall movement against the officers and Executive Director for their selfish, self-centered, self-aggrandizing management of this matter that is, on its face and in depth, inconsistent with the stated purposes of the organization. And their little dogs, too.

Before diving too far into what the changes do, though, let's take a quick look at what has remained unchanged:

  • Representation for both classes remains inadequate. Specific comments from the Executive Director of the AG and from a representative of the publishers have made very clear that they will not accept any additional proposed representatives or parties at the bargaining table.
  • Contrary to binding procedural authority (Shutt and Hansberry, among others), this settlement purports to bind the copyright owners of orphan works... when, by definition of "orphan works," those parties cannot be found, so there is no way to ensure notice.
  • Contrary to that same binding procedural authority, albeit less strongly, the "opt out" mechanism remains inimical to the Copyright Act, which contains no means of disclaiming a copyright. In short, this settlement seeks to accomplish by litigation a "solution" that has been explicitly rejected in the Copyright Act of 1976, and implicitly rejected in the 1909 Act.23
  • The revisions do little or nothing to actually deal with the antitrust problems.
  • The revisions do nothing whatsoever to acknowledge the Rosetta Books problem, and in fact attempt to silently reverse Rosetta Books in slightly more-obvious fashion.
  • The same proposed class counsel are operating under the same inept complaints — complaints that reflect both factual and legal misunderstanding of what the (as originally named) Google Library Project actually did.
  • The settlement still accomplishes a shift of administrative burden from the reuser to the copyright holder.24

There is, however, one significant change in Version 2.0. It's a change that I must admire for its chutzpah and subtle creation of an evil overlord: The imposition of a Trusteeship25 on the Authors' Registry (Revised Settlement §§ 3.2–.3, 3.10, 4.2, 4.5, 4.7, and 6.2–.3). On the one hand, on its surface this would insulate decisions from self-interest by the Authors'-Guild-appointed Board of Directors; on the other hand — and the hand far more likely to become an issue in the event of any dispute — the structure of the law of fiduciaries, along with a few subtle wording changes, would essentially insulate any decision made by the Trustee from challenge by anyone. Ever.

Absent trustee status, decisions by the Authors' Registry would be reviewed for gross negligence ("should have known" or "reckless disregard of facts or duties"), which is a stiff standard that is difficult to prevail upon. Under trustee status, though, the same decisions would be reviewed under the "abuse of discretion" standard — a far more difficult standard to meet for someone who is objecting to a decision, and a particularly inappropriate standard for dealing with a situation that is making things up as it goes along by means of a captively appointed trustee. It's one thing to say that the person(s) stuck making decisions on disputed "unclaimed works" status shouldn't be personally liable; that can be covered with an appropriate, and quite probably inexpensive, insurance rider. It's another thing entirely to procedurally block an aggrieved complainant from any realistic avenue for relief. Now throw in the vaguely specified arbitration system — and whether an opt-out settlement can impose arbitration on silent nonobjectors is at best dubious26 — and things get interesting. Not the good kind of interesting, either.

Next time: A dive into antitrust law.

  1. One could argue that "failure to register or renew" was a way to disclaim the copyright under the 1909 Act. In a sense, that's true by effect; the problem is that once registered/renewed, the only way to formally "abandon" the copyright was the purposeful act of publishing without marking... and that was inconsistent with the Berne and Universal Copyright Conventions even then, and further was abrogated when the US acceded to the Berne Convention in 1988.
  2. Not to be too much of a broken record, but my article (previously cited), which I have chosen to post for free access at SSRN (PDF), demonstrates the cost-shifting aspect.
  3. The Revised Settlement calls this officer an "Unclaimed Works Fiduciary" (Rev. S. § 6.2(b)(iii)). That name, aside from being a mouthful, is actually inaccurate; the designated officer's role extends far beyond mere "fiduciary" responsibility for unclaimed works to actual representation of the owners of the "unclaimed works." Calling a rabbit a smeerp does not change the fact that it's a rabbit; this is a Trustee in all but name. And, for simplicity and accuracy, that's what I'm going to call this officer the rest of the way.
  4. See, e.g., the Federal Arbitration Act, 9 U.S.C. § 2 (requiring written agreement to arbitrate that satisfies the law of contract). Even the grossly overreaching decisions that found hidden arbitration provisions enforceable (yes, I'm thinking of you, Chief Judge Easterbrook) were based upon a contract formed by voluntary action and commercial relationships; imposing arbitration through failure to object to the imposition of a new commercial relationship has not, to my knowledge, been upheld anywhere.