This Is My Intellectual Property. There Are Many Like It, But This One Is Mine.
Unless I'm dealing with Google.
Google, and the groups suing the company over Google's past, present, and future efforts to digitize the contents of libraries, are taking the position that books and other creative works of intellectual property are fungible.
Under a proposed class action settlement agreement, authors will be paid a set royalty rate for the digitization of their works, which will then be available to the public through the internet, whether the authors desire it or not. Already published books, under the settlement, will become commodities like fish or dog food or paper.
The problem is that books, by and large, are not fungible:
<Adj.> 1 : being of such a nature that one part or quantity may be replaced by another equal part or quantity in the satisfaction of an obligation <oil, wheat, and lumber are fungible commodities>;
2 : interchangeable;
3 : flexible;
While, as a consumer of books, I'm happy enough for myself that if this settlement goes through I'll have access to many more than I have now, and for free, I'm deeply concerned about the fairness of this settlement to the authors themselves. I'm sure many will be happy to get a little money they wouldn't otherwise receive. Others don't know about the settlement, or don't care. And still others think they should have the right to control their intellectual property, absolutely.
In the latest objection [to the Google Books class action settlement], Scott E. Gant, an author and partner at Boies Schiller & Flexner, a prominent Washington law firm, plans to file a sweeping opposition to the settlement on Wednesday urging the court to reject it.
“This is a predominantly commercial transaction and one that should be undertaken through the normal commercial process, which is negotiation and informed consent,” Mr. Gant said in an interview. Google and its partners are “trying to ram this through so that millions of copyright holders will have no idea that this is happening.”
Unlike most previous objections to the project, which focused on policy issues and recommended modifications to the settlement, Mr. Gant argues that the agreement, which gives Google commercial rights to millions of books without having to negotiate for them individually, amounts to an abuse of the class-action process. He also contends that it does not sufficiently compensate authors and does not adequately notify and represent all the authors affected.
This is the problem with the settlement. Under ordinary legal principles, if I take a fungible commodity from you, say I total your car, all I owe you is the market value of a suitable replacement. Every 2004 Toyota Camry is the same.
That can't be said of books. Although it may seem that every book by Harold Robbins is just like every other, and for that matter every book by Jacqueline Suzanne or Ira Levin, or that most fantasy books printed today are just yesteryear's Dragonlance novels warmed over, that's not true. Every book, no matter how horrible, is unique, unless it's plagiarized or stolen, in which case the law grants the victim the right to an injunction against further copying, the right to say, "Stop! This is mine. You may not copy or reprint it without my permission and on such terms as I demand."
Only now it isn't. Under the Google Books class action settlement, Google, alone in the universe, would be allowed to reprint and redistribute the work of any author who doesn't opt out of the settlement, with or without the author's consent. And it's a fair bet that most authors don't know that their rights are being bargained away.
How the case got certified as a class action is beyond me. How a court could order a binding settlement, eliminating the unique right of each author of Harlequin Romance novels, or for that matter more worthy authors, to say, "You may not copy this," calls into question whether class actions are really that good an idea to begin with.
Here's hoping the court recognizes that as well. The ideal outcome would be for the court to reject any settlement that isn't agreed by each affected author, or better still, to decertify the class entirely, leaving Google, and the authors whose work it may or may not be stealing, to deal with one another in individual lawsuits.
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