“Limited and Temporary?”

by on April 6, 2009 · 14 comments

Like Berin, I tend to think a lot of anti-Google hysteria is over the top. But I think one place where some criticism is warranted is over the impending Google Book Search settlement. Reader Andrew W points us to his recent post on the Google Book Search settlement:

Google does not somehow become the exclusive copyright holder to orphan works. Other groups and companies are welcome to do the same thing and to also make money from it. And this particular monopoly is, contradictorily, limited and temporary. There will be well-funded competitors.

I’m not so sure. Thanks to the magic of the class action mechanism, the settlement will confer on Google a kind of legal immunity that cannot be obtained at any price through a purely private negotiation. It confers on Google immunity not only against suits brought by the actual members of the organizations that sued Google, but also against suits brought by anyone who doesn’t explicitly opt out. That means that Google will be free to mine the vast body of orphan works without fear of liability.

Any competitor that wants to get the same legal immunity Google is getting will have to take the same steps Google did: start scanning books without the publishers’ and authors’ permission, get sued by authors and publishers as a class, and then negotiate a settlement. The problem is that they’ll have no guarantee that the authors and publishers will play along. The authors and publishers may like the cozy cartel they’ve created, and so they may have no particular interest in organizing themselves into a class for the benefit of the new entrant. Moreover, because Google has established the precedent that “search rights” are something that need to be paid for, it’s going to be that much harder for competitors to make the (correct, in my view) argument that indexing books is fair use.

It seems to me that, in effect, Google has secured for itself a perpetual monopoly over the commercial exploitation of orphan works. Google’s a relatively good company, so I’d rather they have this monopoly than the other likely candidates. But I certainly think it’s a reason to be concerned.

  • http://zgp.org/~dmarti/ Don Marti

    The record companies finally got smart enough to let Amazon create a reasonably useful competitor to Apple's iTUnes — why won't the publishing companies and authors' organizations want to do the same? Amazon is the logical second source here, too.

  • http://www.tc.umn.edu/~leex1008 Tim Lee

    They might be able to, although it would be a little bit tricky to replicate the conditions that led to the Google settlement. But the more important question is why should the AAAP and the Authors' Guild get to decide who gets to index the millions of orphan works that weren't written by their members? I don't think that's an outcome to celebrate even if it doesn't create a literal monopoly.

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  • http://freedemocrat.blogspot.com Freedem

    Democracy Now had a long discussion with the Internet Archive that probably has the second largest collection of works after Google and is a non-profit-501-c3 organization that I believe is the proper repository for that data.

    They mentioned a Public Comment thing that the Court has set up but I can find no link to it on Archive's site. I would like to try and bring general attention to this that they hear from the maximum number of people as to why this is a bad thing and needs to be settled very differently as a public commons.

    I also have viewed Google favorably due to their Founding rule to “Not do evil” unfortunately power corrupts and Google has now oodles of power so despite intentions this is very far out on that slippery slope that Google has no business in.

  • FreeDem

    Democracy Now had a long discussion with the Internet Archive that probably has the second largest collection of works after Google and is a non-profit-501-c3 organization that I believe is the proper repository for that data.

    They mentioned a Public Comment thing that the Court has set up but I can find no link to it on Archive's site. I would like to try and bring general attention to this that they hear from the maximum number of people as to why this is a bad thing and needs to be settled very differently as a public commons.

    I also have viewed Google favorably due to their Founding rule to “Not do evil” unfortunately power corrupts and Google has now oodles of power so despite intentions this is very far out on that slippery slope that Google has no business in.

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    This is great news. Best of luck for the future and keep up the good work.

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    This is great news. Best of luck for the future and keep up the good work.

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