Saturday, November 14, 2009

Until You’ve Studied James Grimmelman on Google Settlement 2.0, Don’t Bother Me

The redoubtable James Grimmelman is first and best out of the gate with a comprehensive analysis of Google Books Settlement 2.0, which was filed late yesterday.

Before asking me what I think, go directly to Grimmelman’s “The Laboratorium” ( Do not pass “go.” Do not collect $200, especially if you intend to deposit it with the Authors Guild’s Book Rights Registry. Pending further review, spend your money, instead, on bulk orders for my new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death. Or on a long-term subscription to Dave Meltzer’s Wrestling Observer Newsletter.

Grimmelman, the Dave Meltzer of Google Books settlement watchers, has about as much as you can say in one gulp about Settlement 2.0 in a late-night blog entry headlined “Midnight Madness.” He and his New York Law School acolytes are working feverishly on more detailed comments and resources.

My own instant analysis of Settlement 2.0 is strictly vicarious. I am not a party to the Google case, having opted out. Settlement 2.0 is as much a political document as a legal one. It is an act of triangulation attempting to address objections and comments – hundreds of objections and comments, almost all of them thoughtful, and many of them rigorous – from authors, foreign governments, the Justice Department Antitrust Division, and others.

As part of what I think is the same triangulation process, I suggested, in a letter to Attorney General Eric Holder, that Google Books be considered in tandem with the Supreme Court freelance journalists’ case, Reed Elsevier v. Muchnick. At the time, Grimmelman, among others, pooh-poohed this idea as a bit of a reach, and of course it is. So is Google!

Whatever the flaws of Settlement 1.0, I have always liked its vision of some kind of royalty system. I have wondered loudly why the same vision cannot be applied to the magazine and newspaper articles at issue in Reed Elsevier v. Muchnick. The answer, of course, is that it absolutely can, and especially since the two cases have a common plaintiff, the Authors Guild, which is playing point on the royalty system. But that doesn’t mean it will happen – mostly because freelancers lack the marketplace clout or cohesion of even the relatively powerless and uncohesive community of book authors.

(The Authors Guild’s partners in Freelance, the National Writers Union and the American Society of Journalists and Authors, have broken off and criticized the Guild for its Lone Ranger stewardship of Google Books; NWU and ASJA even joined a new coalition called the Open Book Alliance. And they objected to Google Settlement 1.0 on some of the precise grounds we objectors raised in Freelance! Go figure. Get your scorecards here, everybody. Just as Grimmelman is the eminence grise of Google Books, so is your humble blogger the go-to guy, the “eminence grease,” of the chronicle of 15 years of writers’ struggles to get a toehold on the promise of new technologies to empower them vis-à-vis corporate publishers.)

Immediately, two elements of Grimmelman’s instant analysis jump out at me. One is this:

“The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation. They’re going to try to tough this one out; the DOJ will have to decide whether to back down or to fight, as this amended settlement doesn’t give it one of the central changes it asked for.”

We shall see on that one. The other element is Grimmelman’s observation that an ambiguous provision of Settlement 2.0 authorizing the proposed Book Rights Registry to re-license works “to the extent permitted by law” leaves open the door for Congressional action to sanitize the future practices of this system. I’m not trying to put words in Grimmelman’s mouth, but I think it’s fair to say that he, like me, wonders whether these de facto royalty systems based on “compulsory licenses” blessed by the courts in private litigation are kosher.

At the end of a long day of googling, Congress must step into this mess – these messes, plural – and apply some appropriate democratic process to new information arrangements that will fairly treat the interests of publishers, authors, and the general public.


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