Saturday, September 26, 2009

Dear Professor Grimmelmann: Let Me Buy You a Drink in the Nation's Capital

The estimable James Grimmelmann of the New York Law School's Institute for Information Law and Policy has blogged his reactions to my letter to Attorney General Eric Holder.

In my letter, the full text of which can be viewed at, I propose that the Justice Department -- whose devastating "Statement of Interest" sent the Google Books settlement architects back to the drawing board -- similarly use its muscle to help coordinate the Google settlement with the equally stalled, and inextricably intertwined, freelance journalists' settlement (Reed Elsevier v. Muchnick, which will be argued at the Supreme Court on October 7).

Grimmelmann's post is at I urge everyone to read it.

When I was alerted to this critique yesterday, I immediately tweeted: "Google settlement commentator-in-chief @grimmelm calls my letter to the AG 'interesting.' Well, that's a start!"

And that's still the way I feel. The Justice brief in Google (which, to my gratification, talked about a lot more than just antitrust) is obviously the single most important independent voice to date in nudging that deal toward a semblance of public-policy sanity. Grimmelmann may be the second most important. I say this not just because Grimmelmann has created "forums," online and elsewhere. A lot of so-called experts set up virtual gathering places and town-hall environments, and most of them don't add up to a hill of beans. My respect for Grimmelmann stems from my appreciation that he is way ahead of the other Google critics in understanding that the settlement there is on to something important, even as it badly misses the mark in its current form.

For a good, tight iteration of Grimmelmann's take on all this, I also encourage readers of this blog to check out his post at the site of Students for Free Culture: An ultimate Google settlement "is likely to be an enormous net positive for readers," Grimmelmann concludes, "but this is no way to run a culture."

Finding a good way to run a culture is exactly what's behind my suggestion to the attorney general to make sure that the right hand of the Google settlement knows what the left hand of the freelance settlement is doing, and that something constructive is done about it.

In the same spirit, Professor Grimmelmann, I invite you to blow off the October 7 hearing on Google in district court in New York (where, we now know, nothing important, or certainly conclusive, is going to happen) and, instead, drop by the Supreme Court for Reed Elsevier v. Muchnick. There the justices will be talking about an unrelated technical issue -- jurisdiction of unregistered copyrights -- but in the course of things they just may have a thing or two to say about how their clear intent in Tasini v. New York Times (2001) has gotten hijacked by a publishing industry that was more interested in putting a boot to the neck of freelance writers than in obeying the law of the land.

If you show up in D.C., I'll buy you a drink afterwards, even though I'm broke, and I'll give you an autographed copy of my new book Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death. Who can resist an offer like that? (You won't find Chris & Nancy snippets at Google Books -- I've asked my publisher to hold off on letting them scan it for now.)


Anonymous Cynthia Turner said...

Dear Irv,

You may also be interested in this thoughtful article. Some of the comments mirror the effect of the Tasini settlement:

"The fact that any settlement would provide any copyrights to Google is alarming . . .To force all those who do not opt out to lose those rights, both with respect to digital distribution and with respect to derivative works is unconscionable. A settlement like this would strip rights away from copyright owners simply because they do not participate in the case or settlement. That would be an enormous taking and redistribution of property rights to a private corporation on an unprecedented level. The fact that it is difficult to identify who owns the rights does not mean that the rights are not owned. Make no mistake, the rights are owned and they would be lost through massive redistribution to benefit Google."

"In the meantime, the DOJ should ramp up its investigation, because as it stands unless this settlement is reworked from top to bottom it has the potential to fundamentally alter the future of how books [substitute articles or images] are bought, sold and presented over the Internet, not to mention the fundamental taking of rights from those who are not a party to this lawsuit."


8:08 AM  

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