In the latest round of Google’s “make me” litigation strategy, the biggest bully in the schoolyard is confronted by yet another group of angry authors opposed to Google’s wholesale landgrab of the works of civilization.
The objection to the Google Books Settlement filed on 1/28 by Canadian authors (although not yet in the docket as of this writing) clearly lays out the high level legal reasons why the Google Books settlement is unlawful on its face. (The Canadian objection is consistent with the DOJ’s conclusion that “As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply,” (DOJ at 2) as well as the well-reasoned testimony of U.S. Register of Copyright Marybeth Peters who concluded that the Google Books settlement’s far-reaching authorization to the Registry and ultimately Google to exploit out-of-print works without prior consent of the rightsholders, alters the traditional understanding of copyright law that allows the owner to exclude others from using a copyrighted work absent authorization of the copyright
Not to take anything away from the high quality legal work done by counsel to the Canadian writers, for which we must exclaim a hearty “Well done!”–but for anyone with even a passing familiarity with international copyright law and a slightly greater understanding of the orphan works laws of Canada and the civil law traditions of Quebec, the guts of the Canadian argument is the kind of thing one could bang out in outline over one’s morning coffee with minor revisions. Which is what makes the entire Google Books debacle even more insulting to Canadian and other ex-US authors–however bad its advice was or is, Google must have clearly known exactly what it was doing, knew what it was doing violated the law, and everyone involved starting with Lessig’s ridiculous presentation at the New York Public Library (of all places) locked arms and danced down the garden path together.
As the Canadian authors so correctly point out: “As a state party to NAFTA, the U.S. is required to provide national treatment to foreign investors, and to comply with substantive copyright policy provisions of the Berne Convention such as refraining from the imposition of formalities. The terms of the Amended Settlement…would rob Canadian class members of these protections. Court approval of the Amended Settlement would violate American treaty obligations to protect Canadian copyright holders. If the U.S. does not meet these obligations, remedies will be available to both the Canadian government and Canadian authors and publishers under the enforcement provisions of NAFTA.”
And NAFTA remedies are just the appetizer. There are plenty of hearty facts available for the main course. It is well to note that there is nothing arcane or unusual about treaty obligations–they are clear as day. These are not arguments, they are facts.
And now–the very writers Google loves to rip off have to spend legal fees to oppose them in one of the more complex class actions of all time. The International Covenant on Economic, Social and Cultural Rights clearly establishes these rights of authors, as do many other international agreements including article 27, paragraph 2, of the Universal Declaration of Human Rights: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”; article 13, paragraph 2, of the American Declaration of the Rights and Duties of Man of 1948; article 14, paragraph 1 (c), of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988; and article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1952. The signatory States also have undertaken the affirmative obligation to protect these rights of authors. Those protections include adequate legislation and regulations, as well as making effective administrative, judicial or other appropriate remedies available to authors within each jurisdiction–at a reasonable price.
Telling an author that they have the right to negotiate with Google, Inc. is really just a joke. Bring your kittens and sunshine.
This financial disparity between the public company bully raising millions in litigation, lobbying and political funds from the public markets and the private individual creator is not lost on Canadian authors–or German, French or other authors being haled into court in the United States in one of the strangest incidents of judicial imperialism of all time.
The Canadian author group makes many good points about the international law implications of Canadian orphan works laws and “that Canada, a bilingual and bi-juridical country, has a cultural heritage and legal tradition that is dissimilar to those of the United States, the United Kingdom or Australia.” Aside from the fact that Google Books violates decades if not centuries of every international treaty known to man or beast from the Berne Convention to the Convention for the Protection of Human Rights and Fundamental Freedoms.
Remember that the original settlement covered every book ever published virtually anywhere in the world. This resulted in convincing objections from three countries (including the United States). Google and the supposed class representatives (an assertion that is becoming increasingly dubious) came up with an amended settlement that covers only titles that have been registered with the U.S. Copyright Office or had a “place of publication” in the UK, Canada or Australia. The spin is that somehow these changes narrowed the number of international rights holders harmed by the settlement.
But remember–this is Google we’re talking about. So what you always know about Google is that if you can’t smell it, it’s because you haven’t looked hard enough for it yet. The BS is always–always–there. These people are incapable of straight dealing. After all, as one VIP has admonished us–don’t be moral.
The registration and “place of publication” requirements do absolutely nothing to fix the international problems of the agreement. For example, if a work is published in a country ex-the UK, Canada, Australia and US but is also published in one of the UK, Canada or Australia it’s still subject to the clutches of Google sucked in through the US court proceeding–even if the author or publisher has no other connection to the U.S.
Google would have the Court enforce a rule that the relevant consideration in enforcing copyright treaties is whether the work has been published in an arbitrary group of countries or if the work was ever registered with the U.S. Copyright Office.
This may be the law in the Temporary Autonomous Zone known as the Googleplex, but why do we have international treaties? Why bother? As a group of German and New Zealand authors argued in their brief objecting to the amended settlement:
“Why, for example, should a book written in Nigeria that has no connection to the U.S. be included in the [amended settlement agreement] simply because it had a “place of publication” in the U.K.? The parties purport to have included books published in the Chosen Countries because those countries share a “common legal heritage and similar book industry practices” with the U.S….But then why did the parties exclude New Zealand and the Republic of Ireland from this list? More importantly, what possible bearing does the “common legal heritage” of the Chosen Countries, or their similar “book industry practices” have on the connection between the
work and the U.S. – especially if that work was created in (or its rightsholders are from) a country with a very different legal heritage? The parties provide no answers to these vexing questions. Instead, it appears that they inserted the “Chosen Countries” requirement into the ASA to create the illusion of a limited settlement confined to a handful of English-speaking countries – when in fact the ASA continues to sweep in books from diverse countries all over the world.”
In other words, to paraphrase LTC Bill Kilgore–Google loves the smell of BS in the morning.
But what is not being said by any of the objectors is this: If the Google Books settlement is approved, no international copyright treaty (including the pending Anticounterfeiting Trade Agreements) will have any reliable provenance. It will be the law according to Google that will prevail.
And that will make John D. Rockefeller’s Southern Improvement Company a pale shadow on the dustheap of history.
Welcome to The Man 2.0.
The Man 2.0 in the Gray Flannel Suit; and
Compare the Canadian Writers Against Google position to that of U.S. Register of Copyright Marybeth Peters:
Copyright Office Position on the Proposed Google Book Settlement