Thursday, November 19, 2009

Confidential To Pam Samuelson: Please Add a Teaspoon of Vision to Your Abstract Critique of Google Books

Fellow Berkeleyan Pam Samuelson, the distinguished University of California law professor and director of the Berkeley Center for Law & Technology, has been commenting on the flawed Google Books settlement for The Huffington Post. Her “New Google Book Settlement Aims Only to Placate Governments” ( happened to precede by about 12 hours my own “In Google Books 2.0, Obama Justice Is the Great Decider” for Beyond Chron (

Samuelson is somewhat more partisan on this subject, and hence more scathing. (On Reed Elsevier v. Muchnick, or "Freelance," it’s no doubt the other way ‘round: Samuelson hasn’t said anything about that case.) There are, however, some similarities in our Google Books analyses. Like me, Pam looks at the fallout of the Justice Department brief on the original settlement proposal and concludes that the changes in 2.0 owe more to international diplomacy than to thoughtful domestic policy.

But I’m also struck by Samuelson’s level of abstraction, a common trait of academics. Your humble blogger speculates on what’s going to happen next with Judge Denny Chin; Pam ends her essay with the fervent hope that the unnamed “judge who is responsible for deciding” will do the right thing.

I’m taking some liberties in referring to Samuelson as “Pam,” but we have had a sporadic and friendly correspondence over the years. In 1997 she won a MacArthur Fellowship, the so-called “genius award,” and richly deserved it. She has forgotten more about digital copyright law than I will ever know – obviously.

That said, I wish that she, like many other well-positioned observers, would connect a few of the dots and talk a little more about the solution that the Google paradigm – if substantially corrected than rather just tweaked – could go a good distance toward defining.

The first class action in which I was involved, Ryan v. CARL, against the now-defunct fax article delivery service UnCover, settled in 2000 for $7.25 million. When I became a litigation consultant, after a term on the staff of the National Writers Union, I hoped that the hammering of some of these dead-bang infringers of freelance writers’ rights would lead to a negotiated royalty system. Yet in the coverage of the UnCover settlement in the San Jose Mercury News, Pam's quote was this: “You run the risk of killing the goose that lays the golden egg.” (In fairness, the newspaper reporter might have phrased a question poorly or published an out-of-context answer.)

Today, for me, the key point about Google 2.0 is not that a huge corporation is making a power grab – which it is; nor that it deliberately released the revised settlement in the middle of the night and ducked a debate on the NewsHour with Jim Lehrer – which it did; nor even that the language about an Unclaimed Rights Fiduciary operating “to the extent permitted by law” fudges the root problem – which it does.

For me, the key point is that between Google and the Freelance case now at the Supreme Court, the courts have exposed about all there is to expose with respect to the need for Congress to step in and do its job on copyright reform. In that process, everyone will have to give up something. Publishers will have to give up their virtually no-cost (Freelance) or monopolized (Google) stranglehold on the commercialized public record. Creators will have to give up their quaint notions of complete control over what has already been published. Users will have to learn that information is not free, but has a price – what should, to be sure, be a fair price, and one that reduces rather than widens the chasms in our two-tiered society.

(P.S. to Pam: If you thought that was me ducking into the Cheeseboard in North Berkeley the other day, you were right – I was hiding from a rabid mob of pro wrestling fans.)


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