Read this first to get caught up on the latest news, then come back here.
With regards to the Google Book Settlement what concerns me about any future negotiation which still allows for an “opt-out” clause is the precedent this will set for future uses of copyrighted material by entities other than Google. This would put the burden on the copyright holder to monitor the world stage for any and all possible declarations of intent to use their protected material in order for the copyright holder to ensure they have opted-out.
Google has a history of turning existing business models upside down, such as with online advertising. Google pioneered the just-in-time pay-per-click approach to paying for ads vs. the traditional pay-up-front-and-wait model of buying ad space in a newspaper or the yellow pages and hoping customers will find you through it. Innovations like these have been the key to Google’s online success and and others have followed their example. However, Google’s proposal to allow them to using others’ copyrighted material unless the copyright holder specifically says Google cannot is another example of Google turning an existing model upside-down. Only in this instance, Google’s approach disregards existing copyright law.
It appears from the DOJ’s statement that they wants to leave the door open to future copyright negotiation with respect to Google’s proposal, including extended opt-out waiting periods, sending more notices of intent to allow for opting-out, or requesting greater diligence on Google’s part in finding copyright holders to inform them of Google’s intentions.
The DOJ has got it wrong.
Google’s argument is that it is too cumbersome to gather individual copyright holder “opt-in” approval before it can do what it wants. So Google believes it should be allowed to assume that approval in advance? Are we supposed to believe Google’s offer to allow copyright holders the choice to opt out then is an act of good faith?
This opt-out approach has been Google’s answer with regards to indexing online content, where the copyright law is a bit less clear. Basically, Google indexes your online, public content unless you tell them not to. Just for fun I looked to see how one would go about getting “unGoogled” and found it’s even harder to do that than it is to keep pace with where to adjust your Facebook privacy settings from going public. Nevertheless, manually scanning printed copyrighted material is another matter entirely.
The DOJ’s stated position suggests they’ve bought into Google’s premise that there is no difference. Google should not be allowed an exemption to existing copyright law, or even considered one, simply because they’ve asked for it and can make a case for all the good they will do with it. When did it become considered acceptable for anyone one to say “oh, I know what the law says, but I can’t be bothered to follow it because it’s just too much work and my intentions are good anyway so I’d like to be excused from it. Thanks.”
Google’s inconvenience cannot excuse them from their responsibility to respect existing copyright law.
The DOJ further proves their acceptance of Google’s premise by arguing that allowing Google to go ahead would give them a monopoly on the digital content (ala Amazon’s ridiculous claim that Macmillan has a monopoly over their own titles) since no one other entity would make similar efforts to create their own archives. As if that is what makes it wrong. Any step down the ‘even if we did allow them to do this then . . . ‘ road is one step too many. The DOJ should be pushing for enforcement of the existing law and insist instead that Google use their efforts to gather consent rather than attempting to lay the burden on those who would be impacted by Google’s action.
I say let Google innovate a new model for finding, requesting and tracking the copyright holder approval the need. Google is all about innovation. And since Google has the world’s information at it’s online fingertips, it should be better positioned any anyone on the planet to match copyright holders (and their contact information) with their copyrighted material.
If it was anyone else searching for that information the overwhelming response would be ‘just Google it’.