Press Release

Opposition to Google Books Settlement Jells


Fri, Apr 17, 2009 at 2:55 pm

    With a May 5 deadline for filing objections to the Google books settlement
    looming, opposition to and criticism of the settlement continues to cement.

    I recently wrote about concerns among copyright and antitrust scholars and others that the settlement would grant Google a monopoly over millions of so-called orphan books, which are out of print and whose rights holders are unknown or cannot be found. I later gave more details of where the opposition was coming from.

    Now some of the opposition is starting to jell. The Internet
    Archive, which is currently working to match Google’s effort to
    digitize millions of books from major libraries, has filed a motion to intervene in the case.
    The Internet Archive argues that the settlement gives Google — and
    Google alone — immunity from liability for copyright infringement for
    scanning and displaying orphan books. Without similar immunity, “the
    Archive would be unable to provide some of these same services due to
    the uncertain legal issues surrounding orphan books.” The filing notes
    that the parties in the suit — Google, the Authors Guild and major
    publishers — plan to oppose the Archive’s proposed intervention.

    The Internet Archive is the second group that has asked the court to
    intervene. The first, spearheaded by a group of lawyers that includes
    Charles Nesson, a professor at Harvard Law School, has published its
    filing here.

    And on Thursday, Randall C. Picker, a law professor at the
    University of Chicago, published an academic paper that raises various
    antitrust concerns about the settlement. Professor Picker, whose paper
    can be found here,
    raises concerns about Google’s monopoly over orphan works. He also
    argues that Google’s role in setting prices for books amounts to a kind
    of pricing coordination that may not survive a challenge under
    antitrust law. And he argues that if the court approves the settlement,
    it should not grant antitrust immunity to Google.

    Professor Picker also suggests the orphan works monopoly might be
    mitigated by allowing others to obtain licenses to the orphan works.

    Various groups, including the Internet Archive and Consumer
    Watchdog, have raised their concerns with lawyers at the Justice
    Department. However, there is no indication that the Justice Department
    or any other government agency has plans to become involved in the case
    at this point. A Justice Department spokeswoman declined to comment.

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