Once again, Google is facing antitrust scrutiny, this time over its proposed settlement with the Authors Guild that would clear the way for it to scan out-of-print books. Most sane people seem to agree that scanning these books and making them available in digital form is a good idea, and the settlement even provides for a token payment of up to $60 per book to go to copyright holders.
The objections, and there are many of them, seem to revolve around the right Google negotiated for itself around orphan books—books still under copyright whose copyright owners cannot be found or who simply fail to register in the Book Rights Registry set up under the settlement. If authors and other copyright holders fail to register by the deadline, which has now been extended for another four months, under the settlement Google will not be liable for any copyright infringement claims stemming from orphan works. The concern is that this will give Google monopoly rights over all orphan works, which is what it appears to do.
In letter to the judge overseeing the settlement, the Internet Archive asked to be added as party to the settlement because it too scans hundreds of thousands of library books, but it won’t be protected from “potential copyright liability.” The judge denied the Internet Archive’s request, but its arguments (embedded in the letter below) spell out the main objection:
The Archive’s text archive would greatly benefit from the same limitation of potential copyright liability that the proposed settlement provides Google. Without such a limitation, the Archive would be unable to provide some of these same services due to the uncertain legal issues surrounding orphan books.
There is also the issue of monopoly pricing. If Google is the only entity with blanket protection, it could start charging more for access to these works, or those works which prove valuable. Any single work is probably not that valuable, but taken all together they are very valuable, especially to Google which benefits by simply being able to add the text of all these books into search results and then make money off the associated search ads.
So Google is now in the position where it negotiated a favorable settlement on its behalf, but competitors are playing the monopoly card and saying that settlement would give Google an unfair advantage in book search and retrieval. And they kind of have a point. So what is the answer? Google should amend some of the terms of the settlement to make it non-exclusive and the Author’s Guild should extend the same terms to any other company or organization that wants to digitize orphan books.
In other words, Google needs to free the orphans. Don’t make this just a deal between authors and Google. Make it a deal between authors and any existing or future book digitizer. Copyright holders should also have the option to place their works under Creative Commons licenses. If Google wants to stop being treated like a monopolist, it needs to stop acting like one.