Fred von Lohmann, the chief copyright counsel at the Electronic Frontier Foundation, has been doing an amazing job of analyzing the latest draft of the Google Book Search settlement, really making the legalese clear for the rest of us. In the latest installment, Fred looks at the competition implications of the settlement, and talks about how the settlement could be structured to make the marketplace as competitive as possible.
Nobody likes this "only-for-Google" aspect of the settlement--in fact, Google has said that it would support orphan works legislation that would empower the Registry to make the same deal (or even a better deal) with others who want to use these unclaimed works. (Where the claimed books are concerned, in contrast, the Registry will likely ask the rightsholders to appoint it to license companies other than Google. But that still leaves all the unclaimed books out.) The settlement agreement even has a provision that makes it clear that the UWF can license others "to the extent permitted by applicable law"--what amounts to an "insert orphan works legislation here" invitation.
Google Books Settlement 2.0: Evaluating Competition
But absent some legislative supplement to the revised Settlement 2.0, it still seems that any other company would have to scan these books, get sued, and hope for a class action settlement. That, of course, is the kind of barrier to entry that any monopolist would envy.
...But we shouldn't be satisfied with antitrust law here. This is not just a simple market transaction between commercial entities. Google is building an enormously important public resource, a task it can only undertake with the blessing of a federal court. The public deserves a solution that is not "barely legal," but that instead encourages real, robust competition. As written, without some modification or legislative adjunct, Settlement 2.0 does not do that.
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