Saturday, February 6, 2010

Books Make People All Googly-Eyed

I hope you are all aware of the Google Books project and the subsequent litigation, governmental interference, outcry, lobbying and three four settlement agreement drafts.1 There has been much written and argued about the project and its future.2

What interests me is the U.S. Department of Justice's current complaints about the revised settlement agreement between Google and the authors. The main concerns appear to be orphan works,3 foreign authors, and the creation of a "horizontal agreement" and de facto exclusivity.4 Pardon me, but I believe orphan works are really the Copyright Office's problem,5 and if we can't find these authors, in all fairness they probably should lose out on the right to profit from Google Books. You snooze you lose. Secondly, foreign authors are also not the DOJ's problem either. The settlement agreement as it is written now does provide some protection for foreign authors.6

That leaves me with the antitrust concerns (which I will certainly concede fall within the DOJ's jurisdiction). The thing that bothers me the most is the de facto exclusivity is cited as a problem by the DOJ, but some court7 in Washington, D.C. has said before (and repeatedly I believe) that just because you have a great idea that no one has yet emulated well enough to compete, you're automatically liable for antitrust violations.8 That is actually counter-productive if you're attempting to create an environment that fosters competition.

I can understand what the DOJ is going after, especially with the Obama administration's stance on antitrust issues, but I feel that the DOJ's energies would be better spent breaking up the cable television cartel, the wireless communications cartel, or some of the professional monopolies that currently exist. This looks looks like another example of the establishment unnecessarily fighting progress.

1: See Class Action Complaint, Author's Guild, Inc. v. Google, Inc., Civ. No. 05-CV-8136, 2005 WL 2463899 (S.D.N.Y. Sep. 20, 2005); Settlement Agreement, Author’s Guild, Case No. 05 CV 8136 (S.D.N.Y. Oct. 28,
2008) (proposed), available at
Agreement.pdf [hereinafter Settlement Agreement]; Memorandum of Law in Opposition to the Settlement Proposal on Behalf of the Federal Republic of Germany, Author's Guild, Inc. v. Google, Inc., Civ. No. 05-CV-8136, 2009 WL 2823706 (S.D.N.Y. Aug. 31, 2009); Statement of Interest of the United States of America Regarding Proposed Class Settlement, Authors Guild. v. Google, No. 05 Civ 8136 (DC), 2009 WL 3045979 (S.D.N.Y. Sept. 18, 2009).
2: For a detailed history of the Google Books Project, see Jonathan Band, The Long & Winding Road to the Google Books Settlement, 9 J. Marsh. Rev. Intell. Prop. L. 227 (2009), available at
3: See Report on Orphan Works, Copyright Office, (Jan. 31, 2006), available at
4: Statement of Interest of the United States of America Regarding Proposed Amended Settlement Agreement at 21, Authors Guild. v. Google, No. 05 Civ 8136 (DC) (S.D.N.Y. Feb. 4, 2010).
5: See Report on Orphan Works, supra note 3.
6: See e.g., Settlement Agreement, supra note 1, § 2.1(a)–(b).
7: I would believe it's known typically as the Supreme Court of the United States of America (SCOTUS).
8: Verizon Commc'ns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) ("It is settled law that this offense requires, in addition to the possession of monopoly power in the relevant market, 'the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.'”). Additionally, the fact that Google (or the Authors Guild for that matter) are entering into an exclusive deal and not dealing with other potential competitors (e.g., Microsoft, Amazon) does not create liability either. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 600-01 (1985).

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