Judge Chin gave his verdict, and the GBS lost.

The GBS Amended Settlement Agreement has been rejected, and it feels weirdly anti-climactic. The Judge – no fool he – limited the scope of his judgment, restricting himself to the aspects which were absolutely necessary to making a decision. Specifically, he said that the attempt by the parties to grant Google a licence for future use based on a case which was supposed to be about past infringements was a greater stretch than the law allowed. On other issues, he was broadly with the objectors – privacy was an issue, copyright too, and so on – but stopped short of making definitive statements which could readily be used as precedents in other cases. It was, as far as I can see with my untrained eye, a conservative, solid, sensible bit of work. Unlike the settlement itself, it stayed within the exact bounds of what was required.

Perhaps because in the UK we’re used to government inquiries and suchlike being heralded with great fanfares and speculation and this judgment was just there from one moment to the next (or maybe I missed the build-up because I don’t follow the New York legal scene closely), it feels rather sudden. After months of worry, it comes down to this, and we won. Huh. Okay. Cool. But what happens now?

Well, there may be ongoing litigation. The National Writers Union statement (Seriously, guys: no apostrophe? Are we grammar pedants or are we not? :) in the US certainly seems to suggest that there will. I can see the argument: Google’s digitisation of copyright works could be seen as an infringement in and of itself, and never mind the whole ‘snippets’/Fair Use argument. And another question: if Google is scanning books in order to create better natural language search software for commercial purposes, should that software be considered a derivative work? (No, probably – but courts have made more unlikely decisions.) Clarity would be good for everyone. I just can’t really muster much enthusiasm for it: my beef was with the GBS quite specifically, for the reasons I’ve given in the past.

However…

I do have some concerns specifically related to the UK. British governments tend to hammer the creative industries when they want to make the point that they’re being frightfully tough on frivolous spending. Gordon Brown’s administration partway-massacred the UK film landscape in 2004 on the basis that those pill-popping monsters in Soho House were evading their tax responsibilities. The Film Council was one of the first victims of the Coalition’s axe. Authors’ averaging tax relief is in the Office for Tax Simplification’s sights – despite George Osborne’s assertion in the budget yesterday that a March of the Makers will save the British economy – and so on and on and on. Government does not like wafty creative types, and particularly does not want to acknowledge that without them, enormous segments of the British economy grind to a halt. It’s much easier to make breaks for ‘enterprise’ than ‘creativity’ – or rather, it’s more politically rewarding to talk about breaks for companies and the notional generation of jobs than about the bedrock of publishing, film, television, advertising, software, and music: creative people.

All of which is preamble to my present worry: the Hargreaves Review. Set up by David Cameron, the purpose of the review is essentially to see what can be done to make the IP framework more friendly to companies like Google. Cameron loves Google. In and of itself, I have no problem with that. I’d much rather he loved Google than British American Tobacco. But restyling the IP landscape to suit Google should please no one. One of the great promises of the internet was the broadening of access to distribution for creative work: the rise of a new meritocratic system where books, music, movies and so on could be made in garages and put online, creating a profitstream which would support artisan creators. A world where big media was increasingly playing catch-up, and raw human endeavour – content – was king. Instead of my going to a big publisher, I’d outsource editing to a freelancer, do the same with publicity and marketing, and take a much larger share of the profits from my work.

It’s an incredibly attractive notion to many. But it hinges – much as many are loathe to admit it – on robust IP law. If you create, say, an amazing short movie and put it on your site free of charge, you are looking for one of two things: massive traffic, so that you can sell ad space, or a contract to make a long-form movie. (You may, if you have Cory Doctorow‘s golden touch, be able to persuade people to buy a download of the movie. Cory’s amazing ability form a rock-solid relationship with his enormous readership, a relationship which feels personal and carries a sense of obligation and collegial respect, is not something anyone I know of has yet duplicated. It’s a tribute to the man, not the model. At the risk of stating the blindingly obvious, not everyone is Cory Doctorow.) If Google or another site can simply lift your film and place it on their own site, they will get the ad revenue you might otherwise have seen. If the movie industry is feeling tight because their profit margin is down because the law now allows filesharing, your chances of getting a deal to make your movie are reduced. (Yes, the movie industry is grossly overpaid and flabby. That changes nothing.)

The point is that while it’s possible to open IP up to make life easier for new services, it has to be done with incredible discretion and caution to avoid simply handing the content industry to a new set of large corporate masters who are not even vested in the notion that content is their primary revenue stream. And how does that profit creators? Not at all.In fact, it just puts us in hock to a culture with a history of refusing to negotiate with artists. Google has recently expressed frustration at the slow and tangled nature of music and TV licensing. Their solution? Legislation (or quasi-legislation like the GBS) and possible compulsory licensing – the same response as they had with the book trade over GBS. During the entire time that the GBS debate was running, I received exactly no communications from Google directly. Everything was broadcast-style, with no possibility of discussion. There was no point of contact with my world, no possibility of negotiating terms. It was: we’re doing this with your stuff. You will either get on board, or you won’t. If you do, we will give you the following (pretty awful, non-negotiable) deal. If you don’t, we may – but do not have to – stop using your material. Well, okay, I exercised my right to walk away from the table – the single most important right in any capitalist society, because without it, you can always be held to a lousy deal. And it is that right which compulsory licenses in their various forms take away.

The Hargreaves Review is not about overturning the Digital Economy Act. It’s not going to liberalise in favour of filesharing. It may recommend legalisation of format shifting of content, but that’s about it for the kind of copyright liberalisation people tend to think of when they hear those words. And while it does appear that Ian Hargreaves has a strong sense that IP as it stands is not suited to present needs, it also appears that he is aware of the complex nature of the discussion. Ultimately, though, the review will not make law; David Cameron’s coalition will do that, and if my experiences during the GBS debate is any guide, parliamentarians are more than a little bewildered by this sort of discussion and unsure why or whether it’s important. Worse, it’s hardly vote-winning stuff. So they tend to bend with the wind which blows from Number 10 unless given strong reasons not to.

So please, please: think about what you want the creative world to look like, and keep your eye on this discussion. Because it is crucial.