Friday, September 11, 2009

"Infringe First and Ask Questions Later"

The Copyright Office has finally been heard from in relation to the proposed Google class action book settlement. All sorts of amici and other interested persons have commented on the good and bad of the proposed settlement except for the Copyright Office -- until now. As reported in the New York Times, the register of copyrights, Marybeth Peters, told the House Judiciary Committee that she really, really does not like the proposed Google settlement deal.

The register pointed out several flaws that she observes in the proposed settlement. First, in granting what appears closely aligned with a compulsory license, the proposed settlement usurps the authority of government to establish principles that regulate the use of copyright. Congressional debate and oversight are thereby ignored in this process. Second, the proposed settlement is structured to appear to give Google the ability to 'infringe first and ask questions later." Third, the proposed settlement would place stress on U.S. diplomacy in that the settlement would impact foreign rights owners for whom the U.S. holds treaty obligations.

The Department of Justice's Antitrust Division continues to investigate the underlying antitrust implications flowing from this proposed settlement and has not yet filed a report of its position with the court.

There are certainly all sorts of policy issues that are affected by, and flow from, the proposed settlement that are distinct from the legal issues pending in the class action. Given the weight and preeminence of these overriding public policy questions, is the N.Y. federal court the best place for resolution of these class action issues?

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