Currently Google, as a part of its mission to index all the information in the world, has through its Book Search program scanned the text of some seven million books. Along the way though, they have also attracted a class action lawsuit for copyright infringement. The lawsuit has been brought to court by the Authors Guild, which at the point of the lawsuit had 8,000 members, and several publishing companies. Google’s argument against the lawsuit is that its scanning, indexing and snippet-providing was a fair and non-infringing use because it provided for a wider distribution and public access to those books.
Many copyright professionals expected that the Authors Guild v. Google case would be one of the most important tests of fair use to date. However the proposed settlement is extremely troubling in that it will in effect give Google total and absolute control over all orphan works and in-copyright but out of print books. While the settlement still has to be approved by the judge hearing the case the end result if approved would see Google get among other things, a license to display up to 20% of the contents of in-copyright out-of-print books which they would be able to runs ads alongside the displays. As well they would be able to sell access to the full texts of these books to institutional subscribers and individual purchasers.
Additionally the settlement that Google has arrived at with the Authors Guild and the Association of American Publishers would if approved be settled as a class action on behalf of all book authors and publishers. By acceding to the certification of these classes through the settlement Google will get a license from all authors and publishers of books covered by the agreement – meaning nearly every in-copyright book ever published in the US – so that it can commercialize them through Book Search.
In effect Google ends up with a monopoly on the largest digital library of books in the world. It will have incredible freedom to set prices and conditions for Book Search’s commercial services. Google will also be the only service legally able to sell orphan books and monetize them through subscriptions. For book authors to be able to any part of the money they will need to be registered with the Book Rights Registry (BRR); which is initially being funded by Google to the tune of $34.5 million, who will be receiving 63 percent of the revenues generated by Google’s Book Search.
Because of the high cost to any of Google’s competitors to get into this game it is unlikely that they will
Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.
So for all practical purposes Google would now have a monopoly over the largest repository of books in the world. Cory Doctorow points out in his post about this news how this also gives Google a big leg up in even regular search over both Yahoo and Microsoft
But no one, not Google, not Santa Claus, should have this kind of leverage over the entire world of literature. It’s abominable. No one benefits when markets consolidate into a single monopoly gatekeeper — not even the gatekeeper, who is apt to lose its edge without competition to keep it sharp.
The publishers I spoke to about this were incredibly smug about it. Because the settlement gives them the power to keep new releases out of Google, they feel like they can use this to keep the company honest.
This is wrong.
New releases are the majority of the publishers’ business, but they’re not the majority of the market for books — and they’re only successful because of all the context created by the entire history of literature. If the publishers offer a sweetheart deal on searching new results to Yahoo, but can’t give Yahoo access to the orphan works and other catalog items to which Google alone has easy legal access, Yahoo’s search tool will never compete with Google’s. To understand why, imagine if Yahoo tried to compete with Google by offering a search engine that only indexed the last 30 days’ worth of web-pages: it’s true that most of the stuff I read on the web was written in the past 30 days, but the 40-50% of stuff I that wasn’t is often enormously important to me. In that world, I would have to flick constantly between searching Yahoo and Google to make sure I wasn’t missing stuff — and very quickly, I’d just default to Google.
At this point in time the judge in the lawsuit still has to approve the settlement so our only real hope for Google not getting this kind of monopoly is that the judge sees the danger of a possible monopoly and goes against the settlement. Given that the majority of judges trying to deal with these new technological and legal territories don’t have a real understanding about them I’m not holding out much hope that the judge will understand the implications.
Chances are that Google will prevail and as a result will become our new literary gatekeeper with no-one in a position to keep them honest.
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