Thursday, April 30, 2009

Congress Must Get Involved in Google Books Solution

The Justice Department investigation of the Google Books class action settlement has slowed down that particular train for at least four months. That is a good thing, but it is not enough. While the judicial and executive branches of government weigh in, no one is yet talking about the silence of the third player: the legislature.

There are around a zillion reasons for emphasizing the need at this point for Congressional involvement.

I have pointed previously to the observations of Register of Copyrights Marybeth Peters (who works under the Library of Congress) about the inappropriateness of litigation as a platform for promulgating fundamental copyright policy. In the global marketplace of digital technology, whatever we do will have to be harmonized with our international treaty commitments. And infringement lawsuits should be about resolving damages, not about creating the framework for the damaged to enable the damagers to take their borderline practices to new levels.

Then there's the antitrust angle, which is the pretext for the Justiice Department's intervention in the Google case. (Though let's see how seriously Attorney General Eric Holder takes this role: Google CEO Eric Schmidt is a technology adviser to President Obama.) Even if Google were not a target for possible trust-busting, the fact of the matter is that compulsory licenses, such as the one contemplated in this settlement, require Congressional antitrust waivers. I support the compulsory license concept. But the House of Representatives and the Senate would never casually pass a waiver for the benefit of a single corporation that didn't even exist a few years ago. In the process, the laws of political physics would dictate -- properly so -- that all the stakeholders have a voice in the shape of a book-scanning registry and royalty system.

To repeat my basic theme, the crisis of the Google settlement marks an historic opportunity for all of us to get it right -- not only in this case but also in the freelance journalists' case, Reed Elsevier v. Muchnick, which currently rests at the Supreme Court.

Jamie Court, the president of Consumer Watchdog, just wrote an excellent piece for Huffington Post headlined "Consumers & Authors Uniting Against Google Book Deal." The link is

For 15 years I have been working toward the day when information users and writers would start seeing the thorny issues of new technologies the same way, and cooperate toward the solutions that would both enhance access and empower independent creators.

I believe that day is at hand.


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