Nov 21, 2008

Last month, we wrote about Google's decision to pay book publishers and authors $125 million to settle two copyright infringement suits aimed at the Google Book Search Program. According to Bloomberg News, U.S. District Judge John Sprizzo tentatively approved the deal earlier this week and there will be a hearing on June 11th to "further consider the pact's fairness."

In announcing the terms of the proposed settlement in October, Google's chief legal officer David Drummond wrote on the company's blog:

This agreement is truly groundbreaking in three ways. First, it will give readers digital access to millions of in-copyright books; second, it will create a new market for authors and publishers to sell their works; and third, it will further the efforts of our library partners to preserve and maintain their collections while making books more accessible to students, readers and academic researchers.

But, in a recent editorial republished on the Electronic Frontier Foundation's (EFF) blog, EFF senior staff attorney Fred von Lohmann suggested that what's good for Google may not be good for smaller startups who have essentially relied on Google to take on the big guys in court. He warns of other unintended consequences of Google settling cases like this one, or possibly Viacom's $1 billion suit against YouTube.

Without violating copyright ourselves (the original op-ed was published in the The Recorder and we don't have permission to republish it in its entirety), here is a snippet from Mr. von Lohmann's commentary that summarizes his main point:

"But when innovators like Google cut individual deals, it weakens the Silicon Valley innovation ecology for everyone, because it leaves the smaller companies to carry on the fight against well-endowed opponents...

For better or worse, it looks like tomorrow's cutting-edge Internet law precedents are going to be left to smaller companies to set. That means smaller startups (and their venture capital backers) need to start planning strategically to pick up the slack left by Google's gradual retreat from the field of battle. To put it bluntly, they need to set aside real money for litigation and find ways to cooperatively invest in the legal precedents that all of them collectively need."

Visit the EFF site to read his entire editorial. You can also listen to a podcast of Mr. von Lohmann discussing copyright at the Tech Policy Summit '08 conference in Hollywood. He participated in a very "lively" roundtable hosted by UCLA Law professor Doug Lichtman with TiVo general counsel Matt Zinn and Copyright Alliance executive director Patrick Ross.

Tags: copyright, David Drummond, Electronic Frontier Foundation, Fred von Lohmann, Google, Google Book Search, Matt Zinn, Patrick Ross, startups, Tech Policy Summit