The Google Book Settlement is probably the copyright story of the year — it’s complex, contentious, involves big players and big subjects — the future of books, perhaps good and evil — resulting in a vast amount of advocacy, punditry and academic analysis.
It’s also a difficult item for Creative Commons to comment on. Both “sides” are clearly mostly correct. Wide access to digital copies of most books ever published would be a tremendous benefit to society — it’s practically an imperative that will happen in some fashion. It’s also the case that any particular arrangement to achieve such access should be judged in terms of how it serves the public interest, which includes consumer privacy, open competition, and indeed, access to books, among many other things. Furthermore, Creative Commons considers both Google and many of the parties submitting objections to the settlement (the Electronic Frontier Foundation is an obvious example) great friends and supporters of the commons.
We hope that a socially beneficial conclusion is reached. However, it’s important to remember why getting there is so contentious. Copyright has not kept up with the digital age — to the contrary, it has fought a rearguard action against the digital age, resulting in zero growth in the public domain, a vast number of inaccessible and often decaying orphan works, and a diminution of fair use. If any or all of these were addressed, Google and any other party would have much greater freedom to scan and make books available to the public — providing access to digital books would be subject to open competition, not arrived at via a complex and contentious settlement with lots of side effects.
Creative Commons was designed to not play the high cost, risk, and stakes game of litigation and lobbying to fix a broken copyright system. Instead, following the example of the free software movement, we offer a voluntary opt-in to a more reasonable copyright that works in the digital age. There are a huge number of examples that this works — voluntary, legal, scalable sharing powers communities as diverse as music remix, scientific publishing, open educational resources, and of course Wikipedia.
It’s also heartening to see that voluntary sharing can be a useful component of even contentious settlements and to see recognition of Creative Commons as the standard for sharing. We see this in Google’s proposed amended settlement, filed last Friday. The amended version (PDF) includes the following:
Alternative License Terms. In lieu of the basic features of Consumer Purchase set forth in Section 4.2(a) (Basic Features of Consumer Purchase), a Rightsholder may direct the Registry to make its Books available at no charge pursuant to one of several standard licenses or similar contractual permissions for use authorized by the Registry under which owners of works make their works available (e.g., Creative Commons Licenses), in which case such Books may be made available without the restrictions of such Section.
This has not been the first mention of Creative Commons licenses in the context of the Google Book Settlement. The settlement FAQ has long included an answer indicating a Creative Commons option would be available. Creative Commons has also been mentioned (and in a positive light) by settlement critics, for example in Pamela Samuelson’s paper on the settlement and in the Free Software Foundation’s provocative objection centering on the tension between the intentions of public copyright licensors and the potential for settlements to result in less freedom than the licensor intended.
Independent of the settlement, we happily noted a few months ago that Google had added Creative Commons licensing options to its Google Book Search partner program. This, like any voluntary sharing, or mechanism to facilitate such, is a positive development.
However you feel about the settlement, you can make a non-contentious contribution to a better future by using works in the commons and adding your own, preventing future gridlock. You can also make a financial contribution to the Creative Commons annual campaign to support the work we do to build infrastructure for sharing.
If you want to follow the Google Book Settlement play-by-play, New York Law School’s James Grimmelmann has the go-to blog. We’re proud to note that James was a Creative Commons legal intern in 2004, but can’t take any credit for his current productivity!