The Register of Copyrights, Marybeth Peters, testified before the House Judiciary Committee yesterday and she is quite skeptical about the legality of Google's plan to scan books and create a registry of authors for future compensation. The crux of her concern:
Ms. Peters said that in granting something like a “compulsory license,” a requirement that rights owners license works to others, the settlement essentially usurped the authority of Congress and skirted deliberations.
“In essence, the proposed settlement would give Google a license to infringe first and ask questions later, under the imprimatur of the court,” Ms. Peters wrote in her prepared testimony.
This has always been the biggest legal sticking point in Google's digitization scheme - do they need to negotiate approval first (the opt-in position), or can they go ahead with their scanning and then later restrict books whose rights-holders step up and ask them to stop (the opt-out position). Getting prior permission for millions of books is impractical, to say the least, so Google has always preferred opt-out: we'll scan it, but let us know if you don't want us making it available.*
Peters is arguing that, practicality be damned, the law just doesn't allow it. Like it or not, you need permission first.** The Google registry essentially creates a compulsory license system, much like how songwriters get paid but can't make a radio station stop playing their songs. The latter system, of course, came about by an act of Congress and there's the rub - Google isn't Congress, even if they do have a stronger bank account.
You can read my contemptuous views on the so-called Google "monopoly" here, but the registry is a more serious matter. Even if it's a good solution - and I believe, for the most part, it is - it might not be legal without federal legislation. Unfortunately, so long as it appears only one company is in a position to benefit, that won't happen. Amazon may be building a digital library under an opt-in system, but that leaves an enormous amount of literature - the orphan works - untouchable.
So it's entirely possible that, while there's no illegal monopoly here, the fear of one will prevent an allowable solution - Congress stepping in and creating a compulsory licensing scheme. It will be a tragedy if we lose a chance to make all these books accessible because only one company was bold enough to take on the task***, but that could well be the result. Is it really better to have no grand digital library than to let Google be the spearhead?
* Where major publishers are aware of what's going on, though, they don't hesitate to opt-out before the scanning takes place. At the UM libraries, the stacks are festooned with pink slips that read "Not scanned at publisher request."
**Unless, like Bobby Bowfinger, you're lucky enough to catch those publisher in some kind of embarrassing situation....
***Ayn Rand fan should be hearing, "Why should only Henry Rearden be allowed to make Rearden Metal?" Seriously, I've seen suggestions that Google should be forced to give away all the digital files they've made at enormous cost.