COPYCENSE

Commentary by K. Matthew Dames, executive editor.

Here’s what I fear will happen in the Google Print Library Project: the copyright controversies will never go to trial, and instead will be resolved by the parties in a confidential settlement agreement.

Of course, it is easy for me to sit here and pontificate about these issues going to trial and having a judge or jury render judgment: after all, I’m not the party being sued. And it is likely that Google’s legal counsel is urging the company to settle these issues out of court to avoid what I am seeking — a judgment on the merits. An adverse judgment could bring considerable financial risk to the company, diminish the vast reservoir of goodwill it still holds in the information community, sap executive resources, and risk bad publicity. (One could argue that Microsoft still is feeling the effects of its lengthy antitrust trial.) Any smart legal counsel would urge Google to settle this matter.

But is the smart move really the right move here?

Unfortunately, the terms and conditions of most legal settlements are confidential. This means that if the parties settle — which is likely — the rest of the world goes without guidance in this critically important area. In some ways, I think the lack of a judgment would be more damaging to those in the content repurposing business than an adverse judgment: at least with an adverse judgment, one can glean some level of understanding of what is allowed and what is illegal. With a settlement, however, all who are affected by the critical issues raised in the case are left listing for guidance on how to proceed in their business — except, of course, for the parties involved, who can’t say anything because they are bound to secrecy.

Now, one can question whether anything can be kept confidential in an era where grand jury testimony from a federal investigation is splashed across the front page of the San Francisco Chronicle. (Aside: I think the Chronicle should NOT be awarded a Pulitzer Prize for its reporting in the BALCO investigation because I believe the newspaper breached professional ethics by making public information that is unquestionably confidential.) And as Peter Suber cogently points out in his analysis of this controversy, the current legal climate of “piracy hysteria and maximalist protection” is not ideal for the type of fair use case Google would be attempting to resolve.

Still, a confidential settlement would do nothing to resolve critical legal issues that arise in digitization projects, most notably those of fair use in the digital age. Perhaps more than anything else, at issue in the Google Library Print Project is the extent to which fair use applies in an era of digitized work. (I also think the federal courts need to rethink the extent to which an author can control downstream uses of its work, a corollary issue to the strict fair use debate.) If the parties settle this case confidentially and without a public judgment, the larger, more important fair use issues will not be resolved, leaving continued business and legal uncertainty in its wake.

Google’s corporate mission is “to organize the world’s information and make it universally accessible and useful.” Since the legal and business issues in the case are too important to the company’s mission (and the overall information management landscape) for Google to settle, I believe the company has an obligation not to punt and settle. Instead, it should litigate the Authors Guild case and see it through to a final judgment.

See also:

Peter Suber. Does Google Library Violate Copyright? SPARC Open Access Newsletter. Oct. 2, 2005.

CopyCense. Authors Sue Google Over Copyright. Sept. 21, 2005.

EFF Deep Links. Authors Guild Sues Google. Sept. 20, 2005.

Jonathan Band. The Google Print Library Project: A Copyright Analysis. (.pdf). August 2005.

Updates:

Lawrence Lessig. Google’s Tough Call. Wired. November 2005.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.