Why did I call Google a (former?) “white knight”?

I wrote yesterday that some fear Google’s decision to settle the lawsuit over the Google library project heralds a new era, one in which Google will not be the rich uncle fighting the fights over copyright that others, who cannot afford being engaged in protracted lawsuits, will be unable to fight. The point deserves some further observations.

First, those who represent wealthy corporate interests typically decry the fact that in the U.S. both the party who brings the lawsuit (the plaintiff) and the party who is sued (the defendant) bears its own litigation costs, win or lose. This rule (the American Rule) is in contrast to the English Rule. In the U.K., the party who loses a lawsuit pays the costs of the winner’s lawyers. As a result, there are fewer cases brought by plaintiffs without resources. Corporate interests that advocate for “tort reform” don’t want individuals suing corporations as often as they currently do for things like personal injury and employment discrimination. If plaintiffs had to pay the costs of the defendants’ attorneys in those lawsuits when the plaintiffs lost, far fewer plaintiffs would in fact sue.

But in the copyright arena in these internet days, it generally is wealthy corporate interests that are threatening to sue or suing individual defendants. Because many of these defendants cannot afford to pay for lawyers to fight these threats, they back down. As a result, there is what is called “copyright overclaiming” – that is, copyright holders claim rights they don’t have, threaten legal action (or send DMCA takedown notices), and get what they want even though they are not entitled to it. Sometimes copyright holders can get help (from, for example, the Electronic Frontier Foundation), but in 999 cases out of 1000 they’re left to their own devices, and it usually makes far more sense to back down then to fight. Why pay for a lawyer to fight an expensive lawsuit when, if you lose, you’ll have to pay the far more expensive legal costs incurred by your adversary too?

That’s why, if Fred von Lohman is right and Google is no longer going to fight copyright battles it thinks should be fought on the merits (and not only for short term business advantage), it would be a real loss; it is, in short, why I called Google a “white knight” in the title of yesterday’s post.