Time for Congress to Help Pave the Information Highway

In contrast with many fellow writers, I believe Google does much more good than bad. I also think the Mountain View Leviathan’s audacious book-scanning project holds great promise as a public utility and comprehensive literary marketplace. But last week’s decision by a federal judge to torpedo Version 2.0 of the Google Books settlement, negotiated by one publishers’ and one authors’ trade groups, has taken the work of private class action attorneys close to their richly deserved dead end.

The final cul-de-sac may be the long-anticipated ruling by the Second Circuit Court of Appeals in the related freelance journalists’ case against electronic database companies; which was known at the Supreme Court as Reed Elsevier v. Muchnick when the justices kicked it back down to the lower courts last year. (I am the lead objector to that particular hash, whipped together by the Authors Guild, the bad cook of the Google Books fiasco, in collaboration with sous chefs from the National Writers Union and the American Society of Journalists and Authors.)

The higher-profile Google objections were spearheaded by, among others, legal scholar and activist Pamela Samuelson. I did not object in that case, but merely exercised my right to “opt out” of its now moribund settlement terms.

There’s at least one big thing on which Samuelson and I agree at this point: litigated solutions to large-scale rip-offs of independent creators’ works have run their course. She told the New York Times, “The next thing to do is think about going to Congress and getting legislation that would make particularly orphan works available to the public.”

An “orphan work” is copyrighted material for which it is difficult or impossible to find the rights holder. Both of these class actions attempted to finesse the problem by folding into their settlements for past infringements a future regime of default licenses and broad releases. However, in his Google rejection Judge Denny Chin made it clear that, even though settlement parties might claim that their deals are in the public interest, only the legislature can impose “compulsory licenses.”

I expect the Second Circuit to proceed to make the same point in Muchnick, where – unlike in Google – the copyright pirates didn’t even go to the trouble of setting up a royalty system to compensate copyright claimants whose permission they couldn’t be bothered seeking.

Again, where the two cases join is in demonstrating our collective inability to entrust the big digital copyright questions to the salami-slice verbal gymnastics of lawyers and mediators most interested in collecting fees.

In my writings and in a 2009 letter to Attorney General Eric Holder, I have argued that the federal government, after constructively intervening in Google, should find a way to coordinate the cases and spur Congress to codify compulsory licenses and fair and reasonable royalty schemes. As with the collective licensing systems devised in the music industry with the advent of radio and records, this would end confusion for librarians and consumers while preserving valuable new means of access.

On the information superhighway, distinctions between books and articles are fast becoming anachronistic. Google Books snippets, for example, now include full texts of pieces I wrote years ago for Spy, Baseball Digest, and Mother Jones magazines.

In an email exchange with Samuelson, a fellow Berkeleyan, she expressed sympathy for my viewpoint. “I am working on legislative alternatives,” Pam told me, “and an extended collective licensing regime is an interesting idea.”

Interesting – and after years of devious practices by newspaper and magazine publishers and other custodians of the historical record, necessary as well. Objectors to bad court settlements have succeeded in blocking systematic intellectual property theft. Now it’s up to the other two branches of government to put positive models in their place.

Irvin Muchnick, author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death, blogs about the history of his involvement in writers’ rights issues at http://freelancerights.blogspot.com. He is @irvmuch on Twitter.