Saturday, July 18, 2009

What the Amazon Kindle / Orwell Story Reveals About the Copyright Class Actions

Amazon has peremptorily and retroactively deleted from its Kindle book offerings George Orwell's Animal Farm and 1984. The reason is confusion over the rights status of those works. Today's New York Times story about this is at

The Kindle deletion anecdote is one with tremendously important implications for both of the major authors' rights cases rattling around in the courts (the freelance case, now at the Supreme Court by the name Reed Elsevier v. Muchnick, and the Google Books settlement, now meeting unexpected delays and impediments in federal district court).

Many commentators are focused on the privacy issues raised by Big Brother Amazon's capacity to know everything about customers' reading lists -- and, on an even scarier level, to expunge material from them. The privacy piece is important, of course. It impacts on everything about Google's creepy ability to break down online data, and it is a factor in any intelligent cost-benefit analysis of the Google Books project in particular. But I'm going to leave the privacy question to others.

Instead, I want to suggest that the Amazon story exposes one of the big flaws in what I regard as these overly ambitious class action settlements. Both the freelance and the Google Books cases have license-by-default mechanisms. These are bad because they turn copyright on its head. However, I do not count myself among those who emphasize that aspect of their badness to the exclusion of everything else. I recognize that the defendants in the current big authors' copyright cases are innovators to varying degrees. And on a policy level, copyright paradigms should evolve appropriately in response.

But here's the thing: The way to achieve that is not through overreaching private court settlements. Hard cases are about facts, infringements, damages. They are not platforms for giving advantage to the very defendants who have trirggered the harm to the plaintiffs.

If the goal of the defendants in these cases is to create a publicly sanctioned "compulsory license," I'm all for that. It will be good for authors, good for readers, good for society -- altogether, a benign use of the wonderful resources of new digital technologies.

Let's be honest, though. The lawyers for infringing defendants have no substantial interest in opening the vault of information to the masses. Their interest is in covering the asses of the private for-profit entities that have usurped the role and prestige of the public library system.

The Amazon Kindle Orwell fiasco reminds me -- again -- of the outrageous conduct of the database company defendants in the freelance case. As early as 1994 (and, really, in all probability, far earlier), Information Access Company, later Thomson Gale, knew full well that a substantial subset of the articles on its products was not properly licensed. Because the aggrieved rights holders were powerless freelance writers, this corporation, and others like it, simply blew off complaints or, even more perniciously, deleted by stealth the works of those who complained. Years later, after the fallout of the Tasini case at the Supreme Court was becoming clear, Barbara Quint of Information Today began expressing alarm over supposedly comprehensive databases that were now being turned into "Swiss cheese." Hey, no kidding!

The Amazon story illustrates the same lesson of the class actions: The new global information system needs to move toward compulsory licenses. Real compulsory licenses. Not pseudo license-by-default fine-print tricks.

Real compulsory licenses will involve comprehensive good-faith negotiations with all the players. They will require antitrust waivers. And they will be sanctioned by acts of Congress -- not by patchwork lawsuit settlements, which, more than anything else, are about leveraging organizations like the Authors Guild while it wrongly projects an image of representing all of us, and about the lawyers desperate to collect multimillion fees for helping perpetuate a regime of Swiss cheese.


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