In testimony before the House Judiciary subcommittee this morning, Marybeth Peters, U.S. Register of Copyrights, in her first detailed comments on the subject, blasted the Google Book Search Settlement as “fundamentally at odds with the law.” In a blistering assessment of the deal, Peters told lawmakers that the settlement is in essence a compulsory license that would give Google the ability to engage in activities, such as text display and sale of downloads, that are “indisputable acts of copyright infringement.”
Most damaging, however, was Peters’s insistence that only Congress—not the courts—could enact such licenses, and her repeated assessments that the settlement deprived Congress of its role. “By permitting Google to engage in a wide array of new uses of most books in existence the settlement would alter the landscape of copyright law,” Peters said. “That is the role of Congress, not the courts.” She said that by allowing out-of-print works to be swept into the settlement, the deal “makes a mockery of Article I of the Constitution.” Only Congress, she stressed, after a full public debate, can set such new rules.
Peters also testified that the settlement would jeopardize Congress’s efforts for more meaningful orphan works legislation, which she noted Congress has been working on for years. The deal “undermines the efforts of Congress to enact orphan works legislation that would benefit all users,” she said. She also added concerns about foreign works included in the deal that could breach international treaties.
While the day’s other witnesses reiterated their well-known views on the deal for the subcommittee, Peters’s testimony stands as a disastrous development for the settlement parties, just weeks before its October 7 fairness hearing. Peters’s strong views could now put Congress and the courts on a collision course, as Judge Denny Chin, in approving the settlement, would have to essentially ignore the Copyright Office’s assessment of the deal’s legality. While that may be in Chin’s purview, Peters's testimony suggests Congress could seek some legislative redress were that to happen.
By repeatedly stressing that the settlement infringed on Congress's sole discretion to enact changes to copyright law, Peters's testimony could have a strong effect on Judiciary Committee chairman John Conyers, who has a history of protecting Congress's role in copyright matters. In 2008, for example, Conyers railed against the National Institutes of Health's open access mandate, a measure passed via an appropriations bill. He lashed out at the House Appropriations Committee, telling CongressDaily that he was frustrated by its refusal to engage repeated questions from his committee about the copyright and intellectual property implications associated with the NIH mandate, fuming that appropriators acted “summarily, unilaterally and probably incorrectly” in enacting the NIH mandate without his consultation, and suggested the mandate encroached on his committee’s “sacred turf.”
