While it is a very good thing that Google and the authors and publishers are not going to be involved in years of fruitless and expensive litigation, there may be some awkward consequences. The draft settlement stops the head-on dispute, but the compromise does appear to have some rough edges. Signing off on this settlement is going to be a tricky problem: no judge will want to be blamed for approving a system which violates public trust or creates a de facto monopoly. A lot in the settlement is indicative and provisional and interim (they don’t quite say “If this doesnt work both parties agree that we will whistle up something else”, but they come damned close to doing so on more than one occasion). Who, at this stage, knows how the various business models will work out (take a look at Georgia Harper’s speculations on pricing “bins” here)? Will a poorly crafted and hastily approved settlement create as many problems as it solves?
But one of the clear things is that there is going to be a Books Rights Registry. This doesnt wait for the judge. It is already whirling into action and authors and publishers are addressing it. This agency is something that the books world needs and it has precedents and cousins in the many ‘collection societies’ that look after dispersed copyright interests (eg in music, graphic art, xerography etc). So we have a new ‘Rights Society’ one which serves the interests of authors and publishers in the management and exploitation of digital texts (so far only in the US, but the same model will doubtless be rolled out in other jurisdictions — think about it: we just called up 150 or more digital collection agencies in different jurisdictions and languages). Google is paying $34.5 million for the creation of the first Books Rights Registry (whose ongoing operation will be funded by a levy from the rights managed) and it would seem highly likely that Google is already building it. That Google is doing this is in many ways a good thing — what an appaling prospect if the publishers were to try and build such a system! But there are dangers and ironies in a situation where Google as the commercial fox, the first and prime exploiter of the distribution opportunities flowing from the settlement, is also designing the chicken wire and building the coop in which the hens will be housed. It is a bit odd for a commercial operator to building its own regulator. Yes, I know that the 8 directors of the Registry are all appointed by the publishers and the authors (4 each). But directors decide the issues that havent already been decided, its the architect and the plumbers who get the building to function. Odd, but possibly unavoidable in these strange circumstances.
Google, unlike the publishers, the authors or their agents, is capable of rapidly and elegantly building a databases system which maps and regulates the incredibly complex real world of copyright exceptions (I recall Frances Haugen’s comment about Google’s management of ‘amazingly complicated’ viewability restrictions). Google’s code already understands much of the bizarre detail of the world of rights and Google also understands how these rights might need to be exploited (or ‘circumnavigated’ the international ramifications are quite mind-boggling) so their system is more than likely going to work. This is certainly an area in which code will become law.
But all this makes me wonder whether the judge who signs off on the settlement will really devote a small portion of his/her time to the 300 odd pages in the settlement documentation. A lot of that documentation will and should evolve in the light of experience. She should really be looking very carefully at the API which the Rights system will incorporate and the principles which underline the API. Devising the principles which should govern this API and crystalising the objectives that the Rights Registry should foster is a matter on which the judge can make a real impact. These are matters of principle and public good, barely touched on in the public documents about the settlement, where we need judicial oversight. Perhaps she will spend some of her time looking at the Android constitution and I hope she will require that the commercial exploitation of literary rights is as open and at least as un-Google biased as Google has promised to make the Android playing field. Some of the Android slogans work rather well for our vision of digital books: ‘Books without borders’, ‘Books can easily embed the web’, ‘Books are created equal’, ‘Books can run in parallel’. Digital books should do all of that and if they run on Android devices as well, who knows all books may soon be ‘available’ anywhere for everybody. Nearly all available for free search….. but that is not yet enough.