Post’s Post on Google Books
A few days ago, David Post wrote about how the controversy surrounding the Google Books settlement could be heating up soon. I agree with him that as we near the fairness hearing (although it was moved back to October), things will get interesting, but I think he misses a crucial point.
Post’s post was responding to complaints by copyright holders about the unfairness of the settlement. His response focused on how amazing Google Books would be and the fundamental reasoning for having copyright and how, if it is no longer making “society better off,” it shouldn’t be upheld in this situation.
Post ignores the fact that the settlement was an agreement. The copyright holders could have taken the case to trial instead of settling, but they didn’t do that because they knew that a determination that what Google had done was fair use would have been disastrous for the future of book publishing (and at least the economic incentives for authorship). True not all copyright holders were part of the discussion, but class counsel was, and they had copyright holders in mind in reaching the agreement. It seems odd under these circumstances for commenters (read: IP lawyers) to argue that their clients aren’t going to get a fair shake, and somehow we should punish Google beyond the payments Google is making in the settlement.
At the end of the day, I agree with much of what Post says, but I think far too often we miss the forest for the trees. Google isn’t getting away for free, and copyright holders might see avenues of economic return that were impossible before the settlement was reached.