Monday, April 13, 2009

Google and Freelance Settlements: 'License-by-Default' Vs. 'Compulsory License'

As noted in the post below, Anita Bartholomew quotes some powerful words on the Google book settlement from Marybeth Peters, the Register of Copyrights. Peters made the remarks at a recent conference at the Columbia University Law School. The video is viewable at

Let's focus on another point Peters made:

“If you look at this [Google book] settlement, in effect it’s a compulsory license for the benefit of one company.”

The operative phrase here is “for the benefit of one company,” and it's a problem with both the Google settlement and our freelance settlement, which is now at the Supreme Court under the name Reed Elsevier v. Muchnick.

Copyright litigation is supposed to redress a grievance -- damages for infringement -- which by definition is something that happened in the past.

In these overly ambitious global settlements, the defendants, whose illegal practices are ongoing, seek closure on their legal exposure by fashioning prospective rights management regimes, and the plaintiff "class representatives" are going along with them. Hence we get what the objectors have been attacking as the "license by default" in the freelance case. The same mechanism drives the Google settlement.

What these settlements are doing is unilaterally declaring a "compulsory license." Lawmakers sometimes mandate compulsory licenses to prevent those with control of certain intellectual property from having too much control over a market from which our culture would benefit overall from a freer flow. Music is the obvious example. You can turn on the radio and hear "Hey Jude" without the radio station having to track down Paul McCartney for permission. The station pays royalties to ASCAP based on audits of airplay of musical works.

Now imagine that only one radio station owner in the world had such a compulsory license. Whenever you wanted to hear music, you’d have to tune in to WWTF and, if you were out of range of that station or one of its affiliates, you’d be out of luck.

That’s the Google settlement’s effect on the vast majority of books. It creates a compulsory license that has the exact opposite effect of what compulsory licenses are meant to achieve.

A real compulsory license based on real comprehensive negotiations involving representatives of all the stakeholders (including librarians and other public-access advocates)? That would be a very good thing, and that is what I argue for. But that is manifestly what the freelance and Google deals do not have (notwithstanding the latter's royalty mechanism, which in itself is a step of improvement over the 0% royalty rights grab of our case).

As Register of Copyrights Marybeth Peters suggested, these deals are public legislation via private litigation. They are not legitimate.

Irv Muchnick


Post a Comment

<< Home