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.
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