Where to next for the Google Book Settlement?

This week a US judge ruled against the Google Book Settlement, the latets in a seven year legal saga that I’ve covered in some depth here.

Jerry Brito has a good explainer of the background of the case:

In mid-2005, the Author’s Guild and the American Association of Publishers filed suit to stop Google from scanning any more books. Soon the Author’s Guild’s case was certified as a class-action lawsuit, meaning that anyone who had ever published a book—millions of authors—would be part of the class represented and would be bound by the result of the case.

An Unsettling Settlement

Three years later, after extensive negotiations, the parties announced they had reached a settlement. Google would pay $125 million up front and would then be allowed to continue scanning books and making them available online. More importantly, Google would be allowed to offer not just snippets, but it would be allowed to sell entire text of books as well. The copyright holder would get about 2/3 of the revenues and Google would keep 1/3.

On its surface, the proposed settlement was a boon for all involved. Google would get to continue digitizing books, authors and publishers would get a cut of the profits, and consumers would get universal access to almost all of the world’s books. But reading between the lines, the settlement proved to be problematic.

Because it was a settlement to a class-action lawsuit, it meant that all authors who had ever published a book were bound. Google could scan any book without first asking for permission. If an author didn’t want his book to be scanned or included in Google’s database, he had to contact Google and opt-out. This would have turned copyright on its head.

As a result, many authors protested. The Author’s Guild and the publisher’s association had negotiated on behalf of millions of authors, and many felt the deal didn’t represent their wishes. Almost 7,000 authors wrote to the court asking to be removed from the lawsuit’s plaintiff class.

Saving the Orphans

Another contentious aspect of the settlement was how it treated “orphan works,” books the authors of which are unknown or can’t be found. It’s a well-known problem in copyright that members of Congress have tried to fix several times.

The problem is that if a company like Google wants to digitize a copyrighted book, and it can’t find its author to ask for permission, then its choices are 1) scan the book anyway and face heavy penalties if the author surfaces later and sues, or 2) leave the book undigitized and out of a universal library. As a result, hundreds of thousands of books are in a kind of limbo, not accessible to readers even if the author may well have been fine with digitization.

The Google Books settlement presented a solution to the problem. Because it bound all authors—-known and unknown—-Google could proceed to scan orphan works without having to worry. If an author later surfaced who didn’t want his book used, he could no longer sue Google. He could opt-out of the program and claim a check for the revenues associated with his book, but no more.

Some welcomed this solution to the problem, but others, including the Department of Justice, pointed out to the court that it would give Google a monopoly over orphan works. Because the settlement would only apply to Google, if another party like Amazon or the Internet Archive wanted to create its own digital library that included orphan works, it would not get the same protection.

And it wouldn’t be easy for other to get the same deal. Short of Congressional action, the only way a company like Amazon could get similar treatment would be to settle a class action suit of their own—a very difficult and time-consuming set of events to replicate. Additionally, because the authors and publishers who negotiated the Google deal are getting a cut of revenue, some have suggested that it would be in their interest to make sure Google remained a monopoly and would therefore not settle as easily with other parties.

What’s Next

Because class-action lawsuits can be as controversial as this one, the law requires that a court approve a settlement before it becomes binding. The court accepted over 500 briefs from various parties supporting or opposing the settlement and early last year held a hearing on the fairness of the settlement. It rejected the case yesterday.

The options available now to Google and the authors and publishers are:

  1. Continue litigating the original lawsuit, which is an unlikely scenario.
  2. Amend the settlement to make it opt-in, meaning that authors would have to give permission before their books are scanned.
  3. Appeal the judge’s decision to a higher court.

Judge Chin seemed to invite a new settlement, saying in his opinion that “Many of the concerns raised in the objections would be ameliorated if the [settlement] were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement.”

In the New York Times, Robert Darnton, himself a librarian and a strident if highly-0informed critic of the deal, weighed in with this opinion piece:

This decision is a victory for the public good, preventing one company from monopolizing access to our common cultural heritage.

Nonetheless, we should not abandon Google’s dream of making all the books in the world available to everyone. Instead, we should build a digital public library, which would provide these digital copies free of charge to readers. Yes, many problems — legal, financial, technological, political — stand in the way. All can be solved.

The Chronicle of Higher Education carries a good interview with Pamela Samuelson:

It’s the only ruling really that the judge, I think, could have made. The settlement was so complex, and it was so far-reaching. With the Department of Justice and the governments of France and Germany stridently opposed to the settlement, it seems to me that the judge really didn’t have all that much choice. So the ultimate ruling, that the settlement is not fair, reasonable, and adequate to the class, is one that I think was inevitable.

The thing that surprised me about the opinion was that he took seriously the issues about whether the Authors Guild and some of its members had adequately represented the interests of all authors, including academic authors and foreign authors. That was very gratifying because I spent a lot of time crafting letters to the judge saying that academic authors did have different interests. Academic authors, on average, would prefer open access. Whereas the guild and its members, understandably, want to do profit maximization.

The EFF’s Corynne McSherry has this analysis:

On the policy front, the court recognized – as do we – the extraordinary potential benefits of the settlement for readers, authors and publishers. We firmly believe that the world’s books should be digitized so that the knowledge held within them can made available to people around the world. But the court also recognized that the settlement could come at the price of undermining competition in the marketplace for digital books, giving Google a de facto monopoly over orphan books (meaning, works whose owner cannot be located). The court concluded that solving the orphan works problem is properly a matter for Congress, not private commercial parties. Sadly, Congress has thus far lacked the will to do so. Perhaps yesterday’s decision will finally spur Congress to revisit this important issue and pass comprehensive orphan works legislation, that allows for mass book digitization.

That said, the court also got some things fundamentally wrong in its copyright analysis. For example, it states that “a copyright owner’s right to exclude others from using his property is fundamental and beyond dispute” and then proceeds to quote at length from the letters of numerous authors (and their descendants) who share the misguided notion that a copyright is, by definition, an exclusive right to determine how a work can be used. We respectfully disagree. Copyright law grants to authors significant powers to manage exploitation of creative works as a function of spurring the creation of more works, not as a natural or moral right. And those powers are subject to numerous important exceptions and limitations, such as the first sale and fair use doctrines. Those limits are an essential part of the copyright bargain, which seeks to encourage the growth and endurance of a vibrant culture by both rewarding authors for their creative investments and ensuring that others will have the opportunity to build on those creative achievements. Thus, as the Supreme Court has explained, such limits are “neither unfair nor unfortunate” but rather “the means by which copyright advances the progress of science and art.” If the legal issues raised in the underlying lawsuit are ever litigated on the merits, let’s hope this or any future judge keeps the traditional American copyright bargain firmly in mind.

Michael Liedtke of the Associated Press thinks this is a micvrocosm of the larger anti-turst and monopoly challenges facing Google:

This week’s ruling from U.S. Circuit Judge Denny Chin did more than complicate Google’s efforts to make digital copies of the world’s 130 million books and possibly sell them through an online book store that it opened last year. It also touched upon antitrust, copyright and privacy issues that are threatening to handcuff Google as it tries to build upon its dominance in Internet search to muscle into new markets.

“This opinion reads like a microcosm of all the big problems facing Google,” said Gary Reback, a Silicon Valley lawyer who represented a group led by Google rivals Microsoft Corp. andAmazon.com Inc. to oppose the digital book settlement.

Google can only hope that some of the points that Chin raised don’t become recurring themes as the company navigates legal hurdles in the months ahead.

The company is still trying to persuade the U.S. Justice Department to approve a $700 million purchase of airline fare tracker ITA Software nearly nine months after it was announced. Regulators are focusing its inquiry into whether ITA would give Google the technological leverage to create an unfair advantage over other online travel services. Google argues it will be able to provide more bargains and convenience for travellers if it’s cleared to own ITA’s technology.

In Europe and the state of Texas, antitrust regulators are looking into complaints about Google abusing its dominance of Internet search to unfairly promote its own services and drive up its advertising prices.

And Google is still trying fend off an appeal in another high-profile copyright case, one stemming from its 2006 acquisition of YouTube, the Internet’s leading video site. Viacom Inc. is seeking more than $1 billion in damages after charging YouTube with misusing clips from Comedy Central, MTV and other Viacom channels. A federal judge sided with Google, saying YouTube had done enough to comply with digital copyright laws in its early days.

One of my favourite comentators on Google is of course the one-and-only Siva Vaidhyanathan, who is quoted in this excellent Inside Higher Ed piece:

Siva Vaidhyanathan, a media studies professor at the University of Virginia and a notable Google gadfly, said the company overplayed its hand by essentially trying to rewrite the rules governing the copying and distribution of book content through a class-action settlement. “Google clearly flew too close to the sun on this one,” he wrote in an e-mail. “…This is not what class-action suits and settlements are supposed to do.”

Vaidhyanathan said that Google now faces the choice of either continuing to fight for its interpretation of copyright law in the courts or scaling back its plans for a digital bookstore. “If Google decides to take the modest way out, it can still ask Congress to make the needed changes to copyright law that would let Google and other companies and libraries compete to provide the best information to the most people,” the media scholar says. “Congress should have been the place to start this in the first place.”





Alex Burns on attention cascades

Over at his blog, Alex Burns has an excellent post on Google Ngram and its ability to map long-wave “attention cascades”:

I chose the literature on the Graeco-Armenian magus George Gurdjieff and the Russian journalist Pyotr Uspenskii (Ouspensky) for several reasons. It is a structured ‘body of work’ with primary sources, pupil narratives, and second- and third-generation commentaries. This segmentation means it can be compared with a range of authors and topics using bibliometrics, historical research, and anthropological methods. It anticipated themes of the 1960s Age of Aquarius and 1970s environmental movements. It grew endogenously after some specific events, such as the timed release of Gurdjieff’s authorised writings and the early popularity of Ouspensky’s neo-Theosophical writings on consciousness, mathematics, and comparative religion. The fluctuations in Google’s Ngram Viewer can be interpreted, in part, as the rise-and-fall of what Ouspensky called the ‘Fourth Way’ in the Human Potential movement and other subcultures. Continue reading

Jock Given

It’s time for a bit of fan post about Jock Given, Swinburne’s Professor of Media and Communications.

Why a fan post? Maybe it’s his recent in-depth dissection of the Australian Government’s implementation plan for the National Broadband Network. Maybe it’s his long review essay, also in Inside Story, about the future of books and print. Maybe it’s his fine monograph of 2003, Turning Off the Television, about the history and future of Australian broadcasting and communications policy.

In fact, any way you slice it, Given’s work has become central to this field. He’s got that rare combination of incisive analysis and clear, witty prose.

Take, for example, his discussion of the National Broadband Network, one of the best short introductions to this bewilderingly complex topic you’re likely to find:

WHAT McKinsey and KPMG have delivered is the most substantial public analysis of an Australian communications infrastructure project since the domestic satellite system in the 1980s. This is a major benefit, though not necessarily a good omen. AUSSAT racked up $800 million in debt within a few years. Voluminous public documentation doesn’t always lead to great decisions.

Indeed, in Australian communications, the size of the study is generally indirectly proportional to its influence. The bulky Davidson Inquiry recommending competition in telecommunications and the multi-volume Broadcasting Tribunal inquiry recommending the introduction of cable TV, both in the early 1980s, achieved close to zero. The Productivity Commission’s year-long inquiry into broadcasting in 2000 was largely ignored. But Kim Beazley’s few-page statement about telecommunications competition in 1990 blew the industry apart. By this standard, the two-and-a-half-page media release announcing the NBN in April 2009 was bound to change the world.

The McKinsey/KPMG study is testimony to the sea-change in telecommunications policy in the last two and a half years. For twenty years, both sides of politics have been getting the government out of the telecommunications business, first by allowing private competitors to take on the state-owned monopoly that ran the country’s telecoms for ninety years, then selling down the state’s ownership of it. When new mobile and fixed-line networks were built in the 1990s and 2000s, communications ministers didn’t pour over technology choices, costs, revenues, capital allocation and geographic priorities the way Postmasters-General used to do. Parliament had decided that governments made lousy decisions about those kinds of things.

At least, they weren’t supposed to be pouring over these things the way Postmasters-General used to do. The truth was they still did quite a lot of it. The Coalition government crawled all over Telstra’s timetable for shutting down its analogue mobile phone network and applied immense pressure on its plans to build and later close a CDMA network. In his bookWired Brown Land?, Paul Fletcher, chief of staff to long-term Howard government communications minister Richard Alston and now the Liberal member for Bradfield on Sydney’s north shore, says Ziggy Switkowski was not even on the shortlist of candidates for CEO until Alston insisted he be there. This was at a time when Howard and Alston were pushing their reluctant backbench to support privatisation. The government, they said, had no business controlling a telecommunications company.

But out in the new marketplace, the cable TV and eventually broadband network built in the mid 1990s by the new wholly private telco, Optus, didn’t work very well. The still-public Telstra proved more nimble and ruthless than some expected, building a similar network down many of the same streets. Both companies had to write off billions of dollars. It seemed telcos in commercial markets, even privately owned ones, could make lousy decisions too. Optus’s subsequent caution about investment in fixed-line networks and the curiously widespread, renewed enthusiasm for monopoly is the deep legacy of that time.

The government’s response has been to get back to controlling a telecommunications company. It is not the vertically integrated Telstra, it’s the wholesale-only NBN Co. McKinsey/KPMG’s Implementation Studycontains a set of recommendations that are not yet government policy, but it tells us a great deal about this new, old world.

We have a good idea – the best yet – about how much it might cost. We have lots of data and discussion about what it might earn in revenue. We have an argument about “viability,” but this is really an argument about whether the now fairly well-articulated financial returns that can be expected from the project are justified by the economic and social benefits that might not be captured by the financial modelling.

This is where faith and politics take over.

Simon and Schuster CEO: We still don’t get e-publishing

US e-book sales, 2002-2010. Source: Neilsen BookScan, International Digital Publishing Forum, AFR.

The Australian Financial Review, paradoxically one the best newspapers for coverage of the Australian cultural industries even as its own circulation dwindles away towards marginality, has an excellent article on e-publishing today.

In an ironic twist, you can’t actually see it online, because the geniuses at Fairfax are still firewalling their content the internet. (Great business strategy, guys). This means that the AFR‘s typically excellent Katrina Strickland is denied to web readers, just as today’s article by Emma Connors is.

No matter: you’re humble correspondent still likes to read newspapers and has gone out and bought a physical copy of one.

The article contains a long and interesting interview with Simon and Schuster CEO Carolyn Reidy.

In 2007 the New York based publisher began digitising 12,000 of its backlist titles, and creating a digital distribution network. It was a leap of faith that cost ‘close to eight figures’, says Reidy, who laughs when asked about the return on investment.

“I would say there has not been enough of one yet,” says Reidy.

“Some of those titles are not even available for sale as e-books because we are still clearing the necessary agreements with authors from the deep back catalogue, making sure the contractual work is done.”

The quotes from Reidy are not particularly groundbreaking, but what the article does reveal is how publishers continue to struggle with the cultural implications of the transformation of their industry – from a creator of bespoke physical objects, to the digital distributor of bulk creative commodities.  As Reidy tells Connors,

“We are trying to build on our experience physical sales to make sense of digital, but there’s no doubt we are experimenting. No one feels they have the answer yet.

We don’t know if we will sell more books overall because it is easier for people to buy online where they just have to push a button.

We are not sure if the cultural role books have played – one that is so central – will be maintained as the digital model progresses.

These are all questions that are coming up.”

In other words, publishers are a l0t like newspaper editors and journalists: in deep, deep denial.

I think I can answer those questions really quickly: Will more books be sold online? Yes. Will the central cultural role of books continue? No.

Ken Auletta on the iPad, the Kindle and the future of books

The Papyrus Bodmer II, an early Christian codex (125 AD). Source: Logos Resource Page.

In the New Yorker, Ken Auletta has a highly-researched and rewarding piece on the industry manouvering behind the e-book revolution. It is a fascinating account a gyrating sentiments inside the big publishers, as the book industry confronts rapid technological change:

In the weeks before [the launch of the iPad], the book industry had been full of unaccustomed optimism; in some publishing circles, the device had been referred to as “the Jesus tablet.” The industry was desperate for a savior. Between 2002 and 2008, annual sales had grown just 1.6 per cent, and profit margins were shrinking. Like other struggling businesses, publishers had slashed expenditures, laying off editors and publicists and taking fewer chances on unknown writers.

The industry’s great hope was that the iPad would bring electronic books to the masses—and help make them profitable. E-books are booming. Although they account for only an estimated three to five per cent of the market, their sales increased a hundred and seventy-seven per cent in 2009, and it was projected that they would eventually account for between twenty-five and fifty per cent of all books sold. But publishers were concerned that lower prices would decimate their profits. Amazon had been buying many e-books from publishers for about thirteen dollars and selling them for $9.99, taking a loss on each book in order to gain market share and encourage sales of its electronic reading device, the Kindle. By the end of last year, Amazon accounted for an estimated eighty per cent of all electronic-book sales, and $9.99 seemed to be established as the price of an e-book. Publishers were panicked. David Young, the chairman and C.E.O. of Hachette Book Group USA, said, “The big concern—and it’s a massive concern—is the $9.99 pricing point. If it’s allowed to take hold in the consumer’s mind that a book is worth ten bucks, to my mind it’s game over for this business.”

It’s a great article that examines the fears and hopes of publishers, the shift in business models from physical objects to electronic entertainment experiences, and the incompatibility of spreadsheet-savvy IT behemoths and clubby, author-friendly book publishers. The article’s conlcusion? Unexpectedly, publishers may have leveraged their position as producers of compelling content to play various device operators off against each other, potentially saving the industry.

For now, many publishers believe that they have won the chess match that Sargent started. “We have three behemoths now competing,” the C.E.O. of one house said. “So one of them can’t force us to do anything unless the others go along.” Early sales of the iPad are promising: Apple said that more than three hundred thousand sold the first day, and analysts have guessed that between five and seven million will be sold this year. And a dozen other digital reading devices were on display at the Consumer Electronics Show, in Las Vegas, in January, providing more competition for the Kindle.

Publishers have another reason to hope. The recession has changed the thinking of Silicon Valley companies, shaking their faith in advertising as their only source of revenue. YouTube has begun charging for some independent movies, in an effort to compete with Netflix, and its managers know that to succeed it must have professionally produced content that advertisers—and consumers—will pay for. As digital companies begin charging for content, they are met in the middle by old-media companies looking for ways to charge for what they produce. The incentives for old and new media to form partnerships seem to converge.

I think that’s wishful thinking, to say the least.  But then again, the major record labels haven’t disappeared (yet) either. Ultimately, authors need a way to fuind consumers, and as musicians have found, that problem is as much about industry connections and marketing savvy as it is about the distribution of their content to places where readers and listeners can find it.

The Google Book Settlement grinds on

Sherwin Siy has a post that helpfully updates us all on the latest twists and turns in Google’s attempts to license the entirety of printed publishing (or as close as it can get to that, anyway).

Late on Friday, a federal court in New York received a new version of the Google Book Search settlement. As with the old version, the new one was drafted jointly by Google and its erstwhile litigation opponents: the publishers and authors who sued Google for scanning their books without permission.

Substantively, the new settlement bears a great resemblance to the old one. There’s a large number of changes (which are conveniently marked up in a downloadable file available from the settlement site here), but while they chip away at some of the rough edges of the earlier proposed settlement, the core of our antitrust concerns seems to remain.

Why is this? Orphan works and the ability of other  players to license and sell works online remains the big issue.

That main concern is that Google should not be the sole entity able to license the display of orphan and unclaimed works.

Nothing in the new settlement agreement seems to change that dynamic.

Siy continues,, explaining that:

Sure, other outlets might be able to embed a sort of Google Book reader into their web pages and act as resellers of the Google database, but that doesn’t create actual competition, especially if it’s Google-controlled information and software at the back end. All that the reseller would be doing is providing different window dressing and customer support.

Bottom line:

In the end, it’s still just Google alone in that market, and that’s something that is a real cause for concern.

Elsewhere: The Googlization of Everything

Philip Roth predicts the end of the novel


Philip Roth. Image from The Guardian / Orjan F Ellingvag / Dagbladet / Corbis.

Philip Roth is not my favourite writer, but he is surely a good one. One of the post-war American giants – the generation of Bellow, Updike,  Pynchon and Morrison – Roth has given Tina Brown a wide-ranging and exclusive interview on the future of books and literature. He’s in full “Lion in Winter” mode, but perhaps that’s not surprising.

To read a novel requires a certain amount of concentration, focus, devotion to the reading. If you read a novel in more than two weeks you don’t read the novel really. So I think that kind of concentration and focus and attentiveness is hard to come by – it’s hard to find huge numbers of people, large numbers of people, significant numbers of people, who have those qualities.

Nor will the Kindle rescue the form.

The book can’t compete with the screen. It couldn’t compete [in the] beginning with the movie screen. It couldn’t compete with the television screen, and it can’t compete with the computer screen. Now we have all those screens, so against all those screens a book couldn’t measure up.

I think Roth is dead wrong. Cultural pessimism often is (the pessimists of 1930’s Europe are an important exception). Technologies come and go, and so do artistic genres and movements with them. But who’s to say that what replaces them is not just as good, if not perhaps better, than what went before? The advent of the novel polished off the epic poem within a generation, but also paved the way for the great era of 19th Century novelists like Balzac and Dickens. In our time, the success of long-form television drama like The Wire and Mad Men shows that audiences still have a hunger for complex, difficult, detailed stories – as Benjamin Schwarz notes in his masterful critical dissection of the first two series of Mad Men in the Atlantic.

The full interview is here.

The Australian book industry shoud be prepared for the Kindle. It’s not.

The recent announcement by Amazon that it will release an international version of the Kindle has taken few by surprise. According to PC World, Amazon is already taking orders.


Retro models of the Kindle were somewhat larger

But now the revolution is upon us, commentators are starting to realise the scale of the change it will unleash. In today’s Crikey, for instance, Jeff Sparrow examines the state of the local industry and thinks it will be in for a bumpy ride:

Times are not great for literary publishing. The GFC arrived as the industry already struggled with the collapse of a reviewing culture, declining print runs. and a general crisis about literature’s role in contemporary society. Hence the hope, in some quarters at least, that the Kindle – or something like it – will bring sexy back to reading, that, fortified by e-books, literature will let its hair down and take off its glasses, and the reading public will say, ‘My God, literary novel – you are beautiful!’

Now that’s probably not going to happen. But e-books are not going away, and the industry’s going to have to adapt. It may be a bumpy ride.

Sparrow is right. The publishing industry is way behind where it needs to be in terms of porting its business model from the boutique manufacture of literary artefacts to pure content businesses whose survival will depend on the brand power and audience reach of their authors’ lists – and nothing else.

But many trade publishers soon might be

But many trade publishers soon might be

Perhaps this is why, as Sparrow notes, “at most writers’ festivals, the whole digital thing often sparks far more revulsion than enthusiasm.”

For every Wired fan gushing over a new Gutenberg revolution, there’s a dozen pundits explaining — either mournfully or combatively, depending on temperament  — how they take tactile pleasure in turning printed pages, that ink and paper smell nice, and that the transformation of the bound volumes on their study shelves into ones and zeroes existing only in cyberspace fills them with equal parts horror and disgust.

It is this book-loving culture that is ironically going to be the biggest challenge for publishing houses. The beauty of the printed and bound codex will endure. Many publishers will not.

The Google book settlement: delayed indefinitely?

The New York Times is reporting that the Google book settlement has been delayed by the judge, perhaps sensibly given the scale of the objections raised against it.

While most readers of this blog will be well acquainted with what Google proposes to do (scan everything it can and pay copyright holders a royalty), it’s worth quoting Miguel Helft’s article and the judge’s comments:

“The current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations, and prominent authors and law professors,” Judge Chin wrote. “Clearly, fair concerns have been raised.”

But Judge Chin also echoed comments made by the Justice Department last week that the settlement, if properly revised, could offer great benefits, most notably, by providing broad access to to millions of out-of-print books that are largely locked up in a small group of university libraries.

“The settlement would offer many benefits to society, as recognized by supporters of the settlement as well as D.O.J.,” he wrote, referring to the Department of Justice, which filed its own brief in the case last week. “It would appear that if a fair and reasonable settlement can be struck, the public would benefit.”

This suggests that the case has a good chance of success if it can negotiate the various objections raised to it, offering a potentially dazzling new vista for literary collection agencies and the possibility of real money for authors of long out-of-print books – but also, of course, the threat of the Googlization of Everything.

“The current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, nonprofit organizations, and prominent authors and law professors,” Judge Chin wrote. “Clearly, fair concerns have been raised.”
But Judge Chin also echoed comments made by the Justice Department last week that the settlement, if properly revised, could offer great benefits, most notably, by providing broad access to to millions of out-of-print books that are largely locked up in a small group of university libraries.
“The settlement would offer many benefits to society, as recognized by supporters of the settlement as well as D.O.J.,” he wrote, referring to the Department of Justice, which filed its own brief in the case last week. “It would appear that if a fair and reasonable settlement can be struck, the public would benefit.

Guy Rundle on parallel import restrictions for Australian books

In Fairfax’s relaunched National Times, Guy Rundle has a perceptive essay on the unsustainability of parallel importation restrictions (often abbreviated to PIR) for Australian books:

Though the chief opponents of PIR have been the large book chains and their tame flacks, the main game in terms of radically cheapening and improving the flow of information and culture should be the abolition of territorial controls altogether.

History shows new and wider modes of circulating knowledge, debate and information are the means by which entrenched power and unquestioned authority is challenged. Just as the printing press destroyed the monasteries, and made possible the Reformation.

This seems genuinely liberatory, so why are so many of the cultural left against it? In Australia, it’s because the cultural left has long seen progress as a coalition between left-liberal intellectuals, the state, and regulation and subsidy. In a backward postwar society that was accurate enough. Not only has technology changed our relationship to the world, but state regulation has become the barrier to wider cultural growth. In the meantime, a left-liberal clique have come to control the cultural institutions now being threatened – and find themselves in the position of defending a system that retains no logical basis whatsoever. Their progressivism has become the conservative status quo, linked to their cultural power.

It’s a valid point, and as always with Rundle, argued with his cutomary flair and elan. It’s true that the executives and cultural managers running Australia’s cultural institutions – and I’m guessing here that Rundle means the big cultural businesses and organisations such as the ABC, Fairfax, the major performing arts companies, state-funded libraries and art galleries and so on – are predominantly “left-liberal” in their political outlook, if only by a kind of default owing to neo-liberal assault on non-market cultural institutions and expressions and the general perspective of many conservatives and economic libertarians that state support for the arts is unjustifiable.

But has state regulation reallly come at the expense of “wider cultural growth” in Australia? On the whole, it’s difficult to argue that it has, especially at a time when many of the most vibrant organisations in Australia’s mixed cultural economy are the state-owned or funded ones, like the ABC and the big city cultural festivals.

Of course, the heavy hand of state regulation is certainly felt in copyright law, where western legislatures (including Australia’s) have enthusiastically enclosed the cultural commons at the bidding of multi-national music and movie industries – not to mention Communications Minister Stephen Conroy’s quixotic tilt at internet regulation .

But does this mean Australia’s comparitively low trade barriers and liberal publishing regulations are really holding back Australian publishing? The evidence from the sector says they are not. In fact, if anything, Australian publishing appears to be thriving under present conditions. This may mean that the industry is healthy enough to survive in a liberalised trade environment. Or it may mean, as the Productivity Commission report on the subject suggests, that the meagre trade protection afforded by parallel importation restrictions has provided a small but valuable cross-subsidy, particularly to the sorts of smaller publishers that support interesting Australian novelists and non-fiction writers. If that is so, then why unilaterally liberalise PIR?

It’s interesting that Rundle finds himself to the right of the Productivity Commission (which ironicallly recommended a public subsidy as a more “efficient” solution to retain the “positive cultural externalities” provided by PIR) on this issue. He is normally quite suspicious of neo-liberal solecisms like the “left-liberal clique” or the “stone-cold absurdity” of cultural protection, and in other contexts, Rundle has railed against the damage wrought on the American middle classes by pro-market, deregulatory policies. Perhaps in this case, his cultural libertarianism is trumping his far more collectivist and radical views on economics.

As for the monastaries, political action by the state was far more influential in their decline than the printing press.