Trigona on Google Book Search Choices

By [Tuesday, March 8th, 2011] at 3:09 pm

Giovanna Occhipinti Trigona has published Google Book Search Choices in the Journal of Intellectual Property Law and Practice. In the words of the abstract, it “critically analyzes Google’s proposal in the context of the Bern Convention, discussing the impact on IP rights and assessing the effect upon the position of rights-holders upon acceptance.” The key word here is “critically”; Trigona is particularly concerned with the procedures used to craft the settlement:

Neither Google’s new IP rights consent collecting system, attributing a by-default meaning to the non-action conduct, nor the by-default extension of consent to all rights-holder’s literary production correspond to the legislation in force.

She reads the Berne Convention, however, to prohibit this way of proceeding:

First, and most importantly, Article 9.2 of the Berne Convention declares ‘it shall be a matter for legislation to permit reproduction of works’, so that the signatory countries must dispose of IP rights’ matters only through the power of their respective Parliaments, and to the extent accorded by the protection principles set forth by the Convention.

This is an interesting argument. It is not the typical article 9.2 attack on the settlement; others have focused more on whether the settlement passes the so-called “three-step test” for article 9.2 (whether it is confined to “certain special cases,” whether it “conflict[s] with a normal exploitation of the work,” and whether it “unreasonably predudice[s] the legitimate interests of the author.” Instead, Trigona directly attacks the institutional choice inherent in the settlement:

The Amended Settlement is a legal consensual transaction deed and will receive the authority of judicial settlement once approved by the US District Court. Indeed, according to the hierarchy on legal sources, neither has a private deed nor a judicial act enough amending power for changing and/or introducing new legislation, as lower in hierarchical ranking. Even if the lack of action means something for the rights-holder, this, without a piece of legislation attributing a by-default meaning, can only be of denial, as it is for the silence expressed within internet practice.

The standard reply here might be that Congress has explicitly chosen to delegate certain powers to courts who apply the law, and to the private parties who draft settlements that courts approve. Thus, there would be no hierarchical conflict. This, of course, raises issues about the actual scope of that delegation under Rule 23. Trigona’s reading of article 9.2, however, might also state that such delegations are simply forbidden: this is a matter for “legislation,” not for “adjudication” or “settlement.”

Trigona also objects to Google’s “survival rights on data about the Research corpus, even when USA copyrights in a book have expired,” saying that Google will enjoy a “license expressed in a once-and-forever consent which certainly goes beyond the author’s and his heirs’ lives.” As a license matter, this seems unobjectionable: after copyright expires, of course Google should be free to do this, as that is the essence of the expiration of copyright. But this might also be an objection to Google’s de facto exclusive control over the data it has gleaned, so that this is more about Google’s ability to withhold data from others, rather than about Google’s permission to examine the data.

In conclusion, Trigona claims that the court is unlikely to bind rightsholders’ heirs and that the settlement will not bar their lawsuits, as it was “collected in breach of legislation.” I think this overstates the case; one cannot say as much without a fairly detailed analysis of United States preclusion law, which she does not undertake. She proposes the conversion of the settlement to an opt-in basis, with a few further changes included to give copyright owners more ongoing control over how Google uses their works. She seeks, that is, a “better balance,” rather than outright rejection.

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