In this nice round-up of Google’s current fair use struggles, Jessica Litman is quoted, saying “If Google is wrong about fair use, it probably has to go out of business.” I’ve followed Litman’s work closely, and I think she accurately gives a sense of the company’s vulnerability here. However, I’ve also thought that the *worst* outcome in these cases would be Google’s decision to use its massive cash reserves to settle all the cases. For that would help set a precedent that might seal its (and perhaps a few other high-market-capped search engines) dominance over the field. Who else would have the cash reserves to compete in the search engine market, given the huge barriers to entry created by licensing fees? So we should be wary when “Google and AP reason together,” even though conventional economists of IP might see this as a triumph of bargaining over the anticommons.
PS: McCullagh reports on a bizarre argument from Google in one of the recent cases:
In one recent case, a Nevada man named Blake Field had written a collection of short stories and then sued Google. Field claimed his stories had been unlawfully offered as cached versions without his explicit permission. Google’s attorneys responded by questioning whether Field’s stories should enjoy the highest degree of copyright protection. The stories are “minimally creative works,” represent “simply” Field’s “ramblings” and “are certainly not works that are deserving of any enhanced protection,” Google said. Its attorneys added that Field had “spent only three days” writing the stories.
As Litman says in the article, that’s a “silly” argument. But it does raise a larger question in copyright–whether the law really *ought* to protect, say, ramblings or racy photos as much as other works. Distinctions may not be administrable–and as I’ve suggested earlier, a “classic” work may be rightfully given *less* protection simply because of its “classic” status (in order to enhance access to it). But copyright policymakers ought to consider the “uniformity costs” of any legal regime here.
Is this a dilemma of the public interest lawyer, or a dilemma for lawyers in general (and is it really a dilemma, or just a challenge?)? Almost a year ago, when the Google Print/Google Book Search litigation got started, I was one of the people (Eric Goldman and Mark Lemley were others) who made the observation that Jessica is echoing. Unlike Eric (and unlike Siva Vaidhyanathan), I took the position the Google shouldn’t settle — not just because of the precedent that this might set, but because (as I wrote back then), sometimes, especially sometimes in the really big cases, you just have to fight the close ones, because if you don’t, you never win the close ones.
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I agree with you, Mike, this is likely a larger issue. It would be an interesting empirical study…perhaps one could look at a large industry that decided to keep suing small players, when its legal right to do so was in doubt. It might slowly manage to create a general social expectation that it is indeed entitled to what it had managed to badger people into giving up via settlement.
I think this is one reason for the atty. fees provision in the Fair Debt Collection Practices Act. I recently had to help out someone being dunned unfairly. When they finally got a lawyer to threaten to sue the collection agency, the agency shut up and stopped the unfair dunning.
The reverse of such a law is, of course, massive statutory damages that frighten almost any file-sharing defendant into settling for, say, 10 grand. I’ve advised a forthcoming student note that will propose putting some teeth in the atty fees provisions to better deter what Mazzone calls Copyfraud.
PS: I’m not saying the file sharing suits are an instance of “copyfraud.” Rather only that it might be wise for Congress to calibrate statutory damages to the defendant’s assets, so better to equalize their deterrent effect. $150,000 means much different things to a prince than a pauper.
Google week continues. By the way, outstanding blog guys. I heard about it from one Mike’s recent grad’s, Krista Staley, and have followed it for a while and finally got up the nerve to post.
A while ago I downloaded (via BT) a round table discussion, ironically filmed the NY Public Library, with Larry Lessig, some google print corp head, the president of the publishing guild and a lawyer representing the publishers. After an hour of discussion and questions I was in a place I didn’t think I would be when I started.
Google and larry’s point was the this is just a card catalog on acid and fair use applies.
The publishers point was that google has the full text scanned and cached without the notifying the copyholder, bla, bla, bla.
I unusually came down agreeing mostly with the publishers point. The argument that kept smacking me in the face it the undeniable fact that Google is going to make money from the print program. I am be mo means a free-market/profit hater but the current IP law is the law. I know that the burden is too high/impossible for google to get permission from all of the rights holders, but I do believe that is what they have to do under current law if they are going to make money off of the search of these works. I know I am preaching to the IP reform choir, but in the gPrint case I believe that Google is doing evil.
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Great post! I would add that settlements would short-circuit movement of the law to a more reasonable accommodation of search and indexing technology, either in the courts or Congress. That would be terrible. Though not at all unlikely, as you say, because of Google’s incentives.
More here: http://blogs.law.harvard.edu/infolaw/2006/08/08/google-fair-use-and-settlement/
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