Inside Google

With a May 5 deadline for filing objections to the Google books settlement
looming, opposition to and criticism of the settlement continues to cement.

I recently wrote about concerns among copyright and antitrust scholars and others that the settlement would grant Google a monopoly over millions of so-called orphan books, which are out of print and whose rights holders are unknown or cannot be found. I later gave more details of where the opposition was coming from.

Now some of the opposition is starting to jell. The Internet
Archive, which is currently working to match Google’s effort to
digitize millions of books from major libraries, has filed a motion to intervene in the case.
The Internet Archive argues that the settlement gives Google — and
Google alone — immunity from liability for copyright infringement for
scanning and displaying orphan books. Without similar immunity, “the
Archive would be unable to provide some of these same services due to
the uncertain legal issues surrounding orphan books.” The filing notes
that the parties in the suit — Google, the Authors Guild and major
publishers — plan to oppose the Archive’s proposed intervention.

The Internet Archive is the second group that has asked the court to
intervene. The first, spearheaded by a group of lawyers that includes
Charles Nesson, a professor at Harvard Law School, has published its
filing here.

And on Thursday, Randall C. Picker, a law professor at the
University of Chicago, published an academic paper that raises various
antitrust concerns about the settlement. Professor Picker, whose paper
can be found here,
raises concerns about Google’s monopoly over orphan works. He also
argues that Google’s role in setting prices for books amounts to a kind
of pricing coordination that may not survive a challenge under
antitrust law. And he argues that if the court approves the settlement,
it should not grant antitrust immunity to Google.

Professor Picker also suggests the orphan works monopoly might be
mitigated by allowing others to obtain licenses to the orphan works.

Various groups, including the Internet Archive and Consumer
Watchdog, have raised their concerns with lawyers at the Justice
Department. However, there is no indication that the Justice Department
or any other government agency has plans to become involved in the case
at this point. A Justice Department spokeswoman declined to comment.