(Posted by Peter Hirtle)
As the length of my posts suggests, James Grimmelmann put on a very thought-provoking symposium. The issues in GBS are hard, with no-clear right and wrong answers. The discussion at the conference only made the decision more difficult because there is good on both sides.
A few final thoughts:
- The discussion of the Rule 23 class action procedures was a real eye-opener for me. To this non-lawyer, it sounds like the authors’ class has been poorly represented by its counsel. The failure to include academic and foreign authors early in the negotiations has led to a multitude of mistakes. I don’t see any easy way of bringing fair representation to this group now, and fear that the entire settlement will collapse as a result. My only consolation would be that the lawyers would not get their obscene $35 million payout.
- Similarly, I was struck by how much of the anger and distrust directed at Google should really be directed at the Authors Guild and the AAP. Does anyone really believe, for example, that it is Google’s desire to charge for access to out-of-print books (when it is giving away public domain books for free)? How much of the final settlement was Google forced to accept in order to make the full text of books available? Maybe it is time that we stopped calling this the “Google Book Settlement” and started calling it the “AG and AAP Book Settlement.”
- I was disappointed to hear an oft-repeated suggestion that GBS needs to be scaled back in significant ways - by making it opt-in rather than opt-out, or by excluding foreign works, or by limiting what can be done with books in the settlement. The more restricted and limited the settlement, the less useful the entire database will be. The decrease in utility will come with no meaningful increase protection in rights holders rights, since rights holders that think they are getting paid too little (for work that is generating no revenue now) can always opt out.
- Even if we accept the idea that the settlement should go forward (and I do), there is plenty of room for improvement. The concessions that Google has announced in the past few months (privacy guidelines, the extension of commercial availability to outlets outside the US, the addition of CC licenses for material, etc.) are all things that could and should have been addressed during the negotiations, before the release of the settlement. Again, the failure to properly represent the author and publisher classes has been the source of innumerable problems. There is room for other improvements – especially more price controls on the institutional subscription.
Thanks again, James, for a terrific three days.
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