07 June 2011

GBS: A "Fair and Balanced" Discussion...

...well, not really.

On 15 June, George Washington University School of Law is hosting a panel entitled "Can the Google Book Settlement Be Fixed?". Leaving aside that the title fails to ask a fundamental prerequisite question — should it be fixed? — I feel compelled to point out the ridiculous construction of the panel. In alphabetical order:

  • Jonathan Band (Jonathan Band, PLLC) — an adjunct professor at Georgetown University Law Center, whose "clients include Internet companies, providers of information technology, universities, and library associations" (but not, apparently, creators of copyrighted works or other individuals).
  • William Cavanaugh (Patterson Belknap, formerly with the U.S. Department of Justice) — "directly supervised" the Antitrust Division's work on its objection to the GBS, but has no experience with individual creators and now works for a firm that represents antitrust defendants (many in the medical area)
  • Michael Guzman (Kellogg, Huber) — a litigator whose focus appears to be on the constitutional limits of government action; his firm represents major telecommunications providers
  • Hadrian Katz (Arnold & Porter) — a patent/computer law litigator who almost always represents large computer companies
  • Daphne Keller (Google) — represents a party, and has no verifiable experience representing individual creators of copyrighted works
  • Lateef Mtima (Howard University) — a respected scholar on some of the ugly economic underside of intellectual property... as it affects end-users
  • Marybeth Peters (formerly Register of Copyrights) — has no experience representing, and precious little working with, individual creators
  • Randal Picker (University of Chicago Law School) — a respected scholar in antitrust and bankruptcy matters who also works around the technology end of intellectual property law (which, admittedly, fits in well with antitrust and bankruptcy!)
  • Richard Pierce (George Washington University Law School) — a scholar on administrative law and the limits of government intervention, and I have no idea why he's on this panel except (perhaps) as a moderator
  • Jule Sigall (Microsoft) — formerly the Associate Register of Copyright and now represents a corporate objector to the settlement; has no experience with individual creators, and was one of the principal drafters of the narrow-minded, largely anti-creator Orphan Works Report; long an advocate of "one size fits all" solutions, and to hell with the consequences for anyone at the boundaries
  • Charles S. Sims (Proskauer Rose) — a former ACLU litigator whose client list includes the motion-picture and recording industries, Lexis-Nexis, the Association of American Publishers (a not-quite-party in the GBS litigation), and the petitioners in the Muchnick matter
  • Roger Trangsrud (George Washington University Law School) — a respected civil litigation scholar (with whom I have a few disagreements on some obscure doctrine) who practiced at Hogan & Hartson before going to academia... a large firm that probably has represented as many as a dozen individuals (outside of white-collar-crime defense) in the last two decades
  • Brian Wolfman (Georgetown University Law Center) — a civil litigation scholar (I'm not that familiar with his work) with a preacademic career working primarily for Public Citizen and similar organizations

The closest thing that the people who actually create copyrightable works — that is, individual authors — have on this panel is perhaps Mr Sims (although he has an actual conflict for this matter) or perhaps Professor Mtima (although his scholarship hints at a user-oriented focus). Perhaps someone will surprise us all, but my initial impression remains: Fair and balanced presentation my ass. That's not to say that nobody should have an opinion on the GBS, or that nobody should support anything approaching a wide-scope resolution; it is only to say that having nobody there to speak for the individual creators seriously undercuts the panel's credibility.

Bluntly, there's a huge difference between the interests of the various organizations involved in this dispute and the interests of the individual creators. For example, the antitrust scrutiny has almost entirely concentrated on price-discrimination potential concerning end-users of the works in question; in fact, the DoJ's brief never got outside of that particular antitrust box. There's a huge question of monopsony that has gone unremarked-upon, though: The effect of an artificially limited market on a large population of suppliers. It's fairly easy to demonstrate (ok, easy after following a few Markov chains) that this leads to homogenized output and commodity pricing... which is entirely inconsistent with the Constitutional imprecation for "Progress in the useful Arts and Sciences."

And that initial question — whether the settlement should be "fixed" — is a fairly important one. Further, the reasoning justifying it would tell us a lot about how (and how not) to do so.