The Importance of Registries

The Google Books case looks like it’s on its way to a settlement for a $125 million “payment”, $34.5 million of which it appears that Google is going to pay to itself to build a “registry”, and $45 million of which is a damages payment for the books that were infringed.

I don’t have a final count on how many works Google took for its “library” project, but if it were 1 million, that’s $45 per infringement.

$45.

A few other thoughts come to mind immediately.

When people talk about a copyright “registry”, that sounds like a place where any retailer could come to access digital copies of works, find out if the copyright owner wanted the work exploited and on what (wholesale) terms, and then pay the registry whatever the wholesale price was as the works were exploited.

Any retailer.

Any.

But that’s not what’s happening here. What is happening is that Google has pressed forward with its extraordinarily unpopular Google Books/Print/Library project (see, e.g., Google and the Myth of Universal Knowledge) scanned millions of books (many scans being of poor quality) and put a gun to the head of authors.

Will Amazon or other retailers be able to use the registry? Will it support DRM for Kindle, e.g.? Apparently not–this appears to be a Google-only registry. Google will not make the scanned books available to any other retailer.

So what is this “registry” exactly? It is a tool for authors and publishers to deal with Google. And only Google. Since Google has done nothing but try to assault rightsholders from its inception, it is hard to believe that this is where it ends. I assume that there will be at least as much foot dragging on building this registry as there was with the YouTube registry which is still rather anemic.

When a registry is initialized, the operator has to make some choices, such as the default switch for titles for which the owner has not come forward (for whatever reason). Is the default for any title that Google has already scanned illegally “opt out”? Meaning they can’t use the book until the author and publisher opt in to the registry?What territories are covered? This surely must be a US-only deal. Will the Registry keep track of all commercial rights, including territories and use geoblocking to keep the works from being exploited outside of cleared territories? The international book publishers are strangely silent about the deal. Could it be they were not consulted?

This registry will take some time to build (at least two years I would imagine), what happens in the meantime? Is Google prohibited from continuing to exploit Google Books?

And most importantly, perhaps–Is the settlement going to stay the litigation and toll the running of the statute of limitations provided the registry is launched on time and on budget? Does the lawsuit continue if Google fails to develop the registry?

Alrighty then. How about that Registry?

“The Registry will be a not-for-profit entity, and all funds received by the Registry will be for the benefit of Rightsholders… The Registry will be funded at first by Google’s $34.5 million payment (net of notice and claims administration expenses)…” Net of “notice” expenses. I wonder what “notice” expenses these are. DMCA notices perhaps? That will be an interesting item.

“Thereafter, the Registry will be funded by an administrative fee taken as a percentage of Rightsholders’ revenues…The Registry will have a Board of Directors composed at all times of an equal number of Author Sub-Class and Publisher Sub-Class representatives…The $34.5 million settlement payment by Google will also fund the costs of class notice, and of settlement administration until the Registry is fully operational….”

Wait, wait, don’t tell me—from the Wall Street Journal we find that:

“WSJ: Is establishing a registry for rights holders a model that Google thinks it can replicate in other areas of digital media, like video?

Brin: “Very much so. In fact, with video and our fingerprinting technology, we are essentially building the registry. We have a number of big media companies that send us their raw video files and we fingerprint that and we can attribute those videos to them.”

Now that sounds to me like Google is going to build and maintain the Registry (and presumably own the contents of the Registry) because according to the settlement document “The Registry will set up and maintain a database of Rightsholders’ contact information and information regarding Rightsholders’ Books and Inserts.” That doesn’t say anything about owning anything. We are told that “Google’s and the Participating Libraries’ authorizations under the Settlement are not transfers of copyright ownership to any Books or Inserts, and nothing in the Settlement Agreement shall operate to transfer any copyright ownership interests in any Books or Inserts.” This is pretty standard stuff and what you would expect.

Now admittedly there is no true database right in the US, but there is in other countries. There’s also other ways to get at protecting proprietary information that you would think a bunch of Harvard folks could come up with. But then I’m just a country lawyer from Texas and I’m not as smart as these city fellers.

So the way I read this settlement proposal is that Google’s going to toss the authors some share of $45 a pop and then pay itself to develop a Registry that it will use largely for its own benefit. I don’t think that the settlement ever says that the Registry could turn around and do the same deal with Amazon.

And here’s why registries are important. There are people out there (dedicated followers of Lessig) who like the idea of registries a lot. Let’s call them the “registrationistas”. The registrationistas want us to head toward a system where if you don’t register you lose your rights and your work goes into the public domain for the good of the “commons” (where you have to register is a moving target, but somewhere, and preferably somewhere controlled by you know who).

In a networked world, however, any registry controlled by Google (and if they build it, they will essentially control it) will be a different beast than a government registry (such as the Copyright Office), but it is a de facto registry nonetheless and sanctioned by the government through a judicial order in this case. Such registries are arguably prohibited by international law—however, registrationistas argue that there is no government requirement for a registry so it doesn’t violate the Berne Convention and many other treaty obligations.

However, as such registries develop, it will be increasingly easier for judges, particularly federal judges sitting in San Jose, California, to be able to side with the registrationistas and rule that a low cost alternative was available to a plaintiff instead of suing for copyright infringement—just register your work and take the king’s shilling. Although the settlement agreement contemplates authors being able to withdraw their works and block exploitation, my guess is that is going to be about as easy as cancelling an account on Facebook.

Once again, we see an extraordinarily US-centric view of the world of copyright being foisted onto the international creative community. There is a world where they don’t have breakfast at Buck’s you know.