Google Book Search will never have an effective competitor

MIT's Tech Review reports on a paper in the Stanford Technology Law Review, in which law/economic scholar Eric M. Fraser explains the anticompetitive aspects of the Google Book Search settlement that the Authors Guild has proposed. The Authors Guild -- a collection of 10,000 writers who had the gall to negotiate this deal on behalf of every writer, living and dead, all over the world -- completely ignored people like the Internet Archive's Brewster Kahle, who urged rightsholders to make a level playing-field for book-search be a prerequisite for any deal. As Kahle says, "Book-search should be like web-search." That is, it should be open to anyone with a good idea and some servers.
- The settlement allows Google to sell copies of works that no other organization in the U.S. can sell: so-called "orphaned" works where the original copyright holder cannot be located because, for instance, they went out of business, of poor record-keeping or mergers. This could eventually constitute the bulk of Google Books. As Fraser puts it, "No other firm has ever been able to legally copy orphan works."

- The settlement allows Google to do things that no one else can reasonably expect to ever be able to do. That's because the only way any other potential competitor for Google Books could reach the agreement it has with publishers--a class action agreement that gives Google default rights to all books ever published in the U.S. unless the holder of their copyright contacts Google to opt out--would be for that competitor to do what Google did: illegally scan the books and then hope for a good outcome when slapped with a class-action suit by all the country's publishers.

- This means that under the current settlement, there is no reasonable expectation that a competitor to Google Books will or could ever arise. Because Google will be allowed to set prices more or less in collusion with publishers, this will give Google no effective competitors in this space. Google will be a de-facto monopoly. "The parties to the actual lawsuit--Google on the one side and authors/publishers on the other side--all benefit from the settlement agreement because it enables collusive pricing," Fraser said via email.

Let's be clear: I'm delighted that Google has figured out a way to bring back orphan works -- I just wish that the Authors Guild and Publishers' Association had the foresight to understand that vesting all this power with one firm (even one I admire as much as Google) was disastrous policy.

I also disagree with the idea that scanning books for the purpose of indexing them is illegal -- making a copy of a copyrighted work in order to generate an index is fair use, and it takes place billions of times every day, as search engines crawl the web (itself made up of largely copyrighted works), doing exactly that.

Why There Can Never Be A Competitor to Google Books

Antitrust and the Google Books Settlement: The Problem of Simultaneity, Eric M. Fraser, Stanford Technology Law Review

(Thanks, Melinda!)



  1. Couldn’t a deep-pocketed competitor do the same thing Google did? Start scanning orphaned-work books in large numbers, and when publishers sue, countersue for violations of the antitrust laws, accusing the Authors’ Guild, the publishers and Google of setting up an illegal monopoly?

  2. I do really like this idea, all that knowledge available and searchable is pretty cool. And I don’t mind Google maybe money off of it either, but Google having exclusive rights, even if it is only in America, is no good. And I wonder, if Google has these rights, could they easily edit books without people realizing what they did?

  3. All this fuss about orphaned works?

    If they woulg generate any money they would not be orphaned in the first place.

  4. Blah Blah Blah … orphaned works.

    For some reason the U.S. has trouble figuring out who owns the rights to books, music, houses, businesses. Property rights are the bedrock of America’s legal system, except when nobody knows who legally owns what.

  5. I, too, was happy that Google was bringing back orphaned works…but then I found the book of Riverbend’s, Baghdad Burning, The Iraqi Girl Blog on google books. What did this mean, I asked myself. Her book was only published in 2005. How can it qualify as abandoned? Is Riverbend dead? Her location unknown? Is she no longer getting royalties from her writing? If she is alive and her work not abandoned, why is Baghdad Burning on Google books? Why is Google stealing from Riverbend!?!

  6. Couldn’t a competitor simply copy the publically available portion of Google Books? Google doesn’t own that information, they just own the scan images. And, the legality of the Author’s Guild decision seems pretty dubious.

  7. a class action agreement that gives Google default rights to all books ever published in the U.S. unless the holder of their copyright contacts Google to opt out

    It’s not that Google only has the right to scan orphaned works, just that those are the ones other companies would have trouble getting rights to.

  8. I mean, it’s not like those “orphaned” books are going to just dissolve into dust. It seems like the second people really start feeling creepy about the whole idea, it wouldn’t be too hard to negotiate a new agreement with an outside source. The only reason it’s an exclusive deal is because nobody else has the stones (or the mountains of cash) necessary for the job. Hell, if it gets entirely too creepy, the government could force Google to spin that section of the company off.

    Cory, I’m curious: what firm would you prefer to have undertaken this task? I like the Internet Archive as well, but Google’s resources can get the job done faster. The way I see it, the great digitization effort has to happen exactly once, and nobody with the resources to do that is clean. Let Google do the job of getting it all online; we can take it back if it becomes necessary.

    1. The only reason it’s an exclusive deal is because nobody else has the stones (or the mountains of cash) necessary for the job.

      Then it they would have a monopoly, not an exclusive deal. They aren’t the same.

  9. Where does the Library of Congress fit into all of this? Do they have their own scanning initiative?

  10. Out of curiosity, does anyone know what the copyright status of Google books are? Say for instance the original is public domain. Presumably then the text is free, since it hasn’t changed, but could one freely take the diagrams and images, or does Google have rights to their scanned version?

  11. Exactly how do the 10k members of the Authors Guild have legal standing to negotiate on behalf of every other author, living dead or somewhere-in-between ?

  12. Google default rights to all books ever published in the U.S. unless the holder of their copyright contacts Google to opt out

    Cory, I’m a writer.

    Do you know if publication of a work on Google Books counts as electronic publication? If so, what will happen to works where the only rights sold were first North American serial rights, but the electronic rights were not sold? Do they just get to be put up on Google Books, without either the publisher or author getting paid or having any say in that?

    Does Google just get to publish my work electronically without my consent? Can I opt out of Google Books and then sell them first North American electronic rights? I’m curious, since I know I have signed contracts where electronic rights were explicitly left out with the idea that if the publisher wanted to buy the electronic rights to the work they’d need to pay me for them.

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