Dear Sweet Baby Fucking Jesus

I am normally a big supporter of the EFF, but they really need to take their fucking head out of their ass and look at the bigger picture on this Google book settlement question.

At the heart of the proposed settlement is a bargain that lets Google (and only Google) leapfrog the problem of "unclaimed works"—books whose copyright owners cannot be found or whose owners can't be bothered to fill out paperwork for a small payment disbursed by the Registry (consider how many "class action" notices you've tossed in the trash unread). Thanks to the magic of the class action process, the settlement solves this problem by resolving the copyright claims of these otherwise unreachable copyright owners and designating all of their works by default as available for "Display Uses" by Google. In other words, so long as no one steps forward to claim these books, Google (and only Google) has a license to make them available in all the ways the settlement allows.

Nobody likes this "only-for-Google" aspect of the settlement—in fact, Google has said that it would support orphan works legislation that would empower the Registry to make the same deal (or even a better deal) with others who want to use these unclaimed works. (Where the claimed books are concerned, in contrast, the Registry will likely ask the rightsholders to appoint it to license companies other than Google. But that still leaves all the unclaimed books out.) The settlement agreement even has a provision that makes it clear that the UWF can license others "to the extent permitted by applicable law"—what amounts to an "insert orphan works legislation here" invitation.

But absent some legislative supplement to the revised Settlement 2.0, it still seems that any other company would have to scan these books, get sued, and hope for a class action settlement. That, of course, is the kind of barrier to entry that any monopolist would envy. 

So, let me get this straight.  The evil monopoly inserts a clause into the settlement granting it this monopoly that expressly aims at letting Congress get its act together and actually take the monopoly away in the near future.  Wow, that's some powerful evil all right.  These guys have really out-maneuvered everyone.

To their credit, the EFF doesn't really even believe what they're saying, as they go on to point out:

This raises a worthy question: if legislation is necessary to fix the competition problem posed by the settlement, then why do we need a class action settlement in the first place? Why not solve what seems like a quintessentially legislative problem with legislation, instead? (As Amazon points out, that's exactly what was done when music publishers brought a class action against the first digital audio tape (DAT) recorders).

Here's where realpolitik enters the equation. Google correctly points out that Congress has been working on orphan works legislation for years, to no avail. And none of the legislative proposals came close to the comprehensive solution embodied in the proposed settlement. So the question boils down to a political one: do you believe that approval of Settlement 2.0 will make orphan works legislation more likely, or less likely? Without a crystal ball, it's hard to know.

If there were intelligent legislation, we wouldn't have needed this whole lawsuit to being with.  But of course, that was the whole point, to force our kleptocratic government, drunk with the campaign contributions they received in exchange for renewing the rights on Mickey Mouse and Sony Bono till 3451, to wake up and do something.  The bigger picture here is that the only thing capable of breaking through the big monopoly in the sky (aka the US government) is the emergence of another sort of monopoly -- the only way to challenge the power of incumbent lobbying is a new economic power that springs from the ground up.  Remember Good Monopoly, Bad Monopoly already a blogosphere classic? If we don't reward this sort of bravado, if we don't, in fact, subsidize it, we won't get any more of it.  You can see how all the more established players in this space banded together not to be able to get a piece of the pie, but the prevent there from being any pie to begin with because it would be a challenge to their incumbent business.  It's classic Gridlock Economy stuff where too many owners end up preventing a resource from ever being used.  No one was missing those orphaned works, even though all those ideas have been trapped in an ever-distending legal limbo for half a century now.  You can't see under-utilization till after the fact. 

So the choice in this case isn't between having access to these books through one company versus having multiple ways to access these works -- it's between having access to those books and not having them at all, or better yet, between having access to this question versus not having it at all.  Ultimately that is why I think it's better that Google not give away everything directly in the settlement, and instead force the issue into the open via requiring potential competition to push for legislation if they want a piece of the (now extant) pie.

Someday Google will mature and will itself be an impediment to innovation.  But not today.  Today they are the only people willing to go out on a limb and challenge the monopolies that already exist.  In fact, maybe Google should join the Pirate Party, or vice versa.