Should the court consider the new Google patent?

On Tuesday Google was formally granted a patent on software to selectively control access to content, based on access rules and geographical locations.  There is a story on Ars Technica here that explains the patent and its potential application very nicely.  Basically, this is a technique for filtering what users can see based on where they are in the world.  Such filtering is not new; Yahoo! famously lost a court case in France and had to begin controlling access to its auction sites to prevent Nazi memorabilia from being sold in that country.  Different international laws about all kinds of topics can force Internet services to distinguish what can and cannot be seen in different parts of the world.

This story is interesting, however, for at least three reasons, the last one very relevant to the fairness hearing being held tomorrow in regard to the proposed settlement of the copyright lawsuit over the Google Books project.

The first thing that is interesting in this story is the fact that the patent application for this software was filed in September of 2004.  The five and a half year gap between initial filing and final approval is not necessarily unusual, but it gives me a chance to remind readers how long and costly the patent process is.  This is a huge difference between copyright and patents, and indicates why copyright is usually so much more important to higher education.  Every scholar, administrator, librarian and student owns copyrights, but relatively few can afford the time and money to obtain a patent, even if they have an invention that meets the much higher standards for patentability.

Which brings me to the second point: should software of this type even be eligible for patent protection?  Software patents were controversial for a long time because they were alleged to represent “only” abstract ideas – algorithms based on zeros and ones.  And until at least the mid-1990s, the Patent Office and the courts would not recognize patents for business methods.  All of that seemed to be resolved in favor of patenting business method software, but a case currently before the Supreme Court, called Bilski v. Kappos, has the potential to alter the rules on this issue.

But it is the impact of this patent on the Google Books settlement that really interests me.  Should the court considering the settlement tomorrow take notice of this patent?  If it did, what impact would it have?  Given the objections to the settlement from international copyright holders and the promises Google has made to exclude works from outside the US, UK and Canada, the need for some filtering system seems obvious.  So from one point of view, this patent is indicative of Google’s good faith efforts to do what it has promised to do.  Nevertheless, there are some less charitable interpretations that could be applied.

For one thing, this software could enable censorship of the type Google first practiced, then rejected, in China.  We should never forget that the origin of copyright was as a tool for censorship; anything that automates copyright enforcement runs the risk of facilitating repression.

Of most interest to the GB settlement, however, is the question of whether this patent ratchets up the worry about a Google monopoly over digital books.  Lots of comment has been made about the possibility that Google will have a monopoly over digital access to orphan works.  It is unlikely that any other party will be able to get the same kind of compulsory license for all orphan works that Google stands to gain in this class action settlement.  Now we must face the possibility that, even if a competitor could get such a license, in order to effectuate the necessary access restrictions they would have to seek a license from Google for these patented process.

The Ars Technica article points out that Google has promised not to use its patent portfolio for offensive purposes, that is, to limit competition, and that its record so far suggests that it is serious about that promise.  Nevertheless, courts need to look beyond promises to “do no evil” and think about long-term consequences.  As it considers whether the proposed settlement will give Google too much market power, it might be well to consider this patent on geographical filtering software as one more reason to keep a sharp eye on the project as it proceeds.