Public Knowledge Files Brief Opposing Amended Google Books Settlement

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Today is the last day for commenters and objectors to weigh in on the amended Google Book settlement before the district court in New York that’s overseeing the case. Yesterday, Public Knowledge filed its amicus brief in opposition to the new settlement.

Our concerns are the same as they were when the settlement deal was first announced—that, if approved, it would result in Google becoming the only company that can sell access to orphan books without risking a massive lawsuit. None of the changes made in the amended settlement agreement substantially altered that fact.

The Settlement and its Problems

We’ve covered how this works in previous blog posts, but to summarize, the plaintiffs in this case, groups of authors and publishers, sued Google for scanning massive numbers of books to be indexed and searchable, with only short “snippets” being displayed. These plaintiffs claim to represent nearly all authors who have registered books with the US Copyright Office.

Instead of proceeding to trial, though, the plaintiffs reached a settlement agreement with Google, in which Google would pay out money to the class and administer a profit-sharing system. In exchange, the plaintiffs agreed to waive their right to sue Google for infringement. If that were all that happened, the settlement would more closely resemble a traditional class action settlement, save for the extraordinary size of the claimed class.

But that’s not what the settlement did. Not only did the plaintiffs waive their right to sue Google for past scanning, they agreed to waive their right to sue Google for selling access to the full text of those scanned books.

What makes this particularly odd is that by using the class action procedure, the plaintiffs are claiming to represent, and therefore make a deal for, everyone who meets the characteristics of a class member. But instead of getting compensation for past actions in return for not suing for those actions, they’re instead claiming to represent all of these authors in a licensing deal.

And this leads to problems when you have authors who can’t speak for themselves to opt out of this deal. Such authors clearly exist—the authors of orphan works. As you might be able to tell by following that previous link, we at PK have often had orphan works on our mind, and are very concerned with their future. So while there are any number of questions about this deal—including privacy, price-fixing, and the overall future of written culture , we've limited our objections to a couple of points.

First, the fact that the class action acts as an opt-out means that if you're an author, your book is by default included in this deal with Google. You have to take active steps to opt out of the deal. By contrast, if any competitor wanted to amass a similar collection of books and sell access to them, they'd have to go to you, the author to explicitly get your permission. So by default, your book is not in their collection. That means that for the overwhelming number of authors, Google would have, under this deal, permission to sell access to their books, while no other competitor could take advantage of the same sort of opt-out deal. Google thus becomes the only entity with such a large collection of books.

And that's not because I'm assuming that book authors are lazy or uninformed—there will be authors who simply cannot make any decision at all. The authors of orphan works—which are defined as those works whose authors can't be found—simply won't be able to opt into or out of anything. In their case, the defaults control completely, and so they end up in the Google collection and in no others.

This means not just that Google becomes the only place that can sell a consumer digital access to an orphan book—after all, that seems like a pretty small market—but that Google becomes the seller of the biggest digital book collection of all, since it has access to all sorts of works that others won't. The big money would be in selling access to the whole collection to subscribers, like universities and other institutions, the way Lexis sells access to digitized archives of periodicals.

And what makes this potential monopoly even less assailable by competitors is that any competitor who tried to do the exact same thing by scanning books and getting sued would have to have an extraordinary set of circumstances come together in order to end up in the same place as Google. Not only would they have to get sued by authors, they'd have to get sued by authors who represented a big enough class; they'd have to get sued by such a class that was interested in settling; they'd have to come to a settlement agreement that looked uncannily like this one, and then they'd have to have it approved by a judge who was willing to overlook the fact that all of this looked a bit like plaintiffs colluding with defendants. It'd be a long shot, to put it mildly.

What the Amendments Changed

Those objections still stand. But it's worth noting a couple of things in the amended settlement that might affect the arguments we made earlier.

In our first brief, we noted one particularly glaring anticompetitive clause in the settlement agreement—a "most favored nation" clause that would prevent book authors from doing deals with Google competitors unless they offered the same deal to Google. Luckily, that's been stripped from the agreement. However, it doesn't alter the fact that those other competitors would still be unable to get the same opt-out structure for licensing books, meaning that Google stays secure at the top of the digital book heap.

Another important difference in the settlement was a couple of changes that made it less likely that existing authors would use the settlement agreement to make a grab for the money owed to the authors of orphan works. Instead of the money for unclaimed works going into a more general pool, that money would get donated to literacy campaigns if the authors couldn't be found. Also, the new settlement set up an "unclaimed works fiduciary" to represent the interests of orphan authors separately from the authors who could be present at the bargaining table.

However, the big question was never about a grab for orphan authors' money, but a grab at their right to make a decision about where their books would be licensed. That rights grab is really what would give Google and the conglomeration of authors a publishers an anticompetitive advantage, and something that isn't changed by the amendments to the settlement.

So What About the Future?

The funny thing about this is that we do want to make sure that orphan works are accessible to the public. And if authors can't be found, what are the odds that allowing access to their works is causing them harm? We've been advocating for legislation that would allow people like historians and documentary filmmakers to use orphan works if they conduct a serious search for and can't find the author—provided that if the author does come forward, the user has to pay reasonable damages—just not bear the full brunt of statutory damages that would otherwise apply. Why then are we wary of the settlement, which would set aside money for the authors, should they come forward?

The answer lies in a fundamental question of fairness. A legislative solution applies equally to anyone willing to take a chance on an orphaned work. The settlement would only offer that chance to Google, and possibly muddying the waters for anyone else who tried to compete with them. If we're serious about insisting that copyright has to promote the progress of science and the useful arts, then we need to be sure that that progress is neither for one, nor none, but for all.

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