Google Books Settlement: Is The Open Book Alliance Trying To Get Something For Nothing?

The legal briefs were flying fast and furiously as all the interest groups, supporters and competitors rushed to meet a deadline for third parties to weigh in on the Google Book Search settlement. The NY Times quotes legal scholars who argue that the “quality” and volume of the filings in the case will make it challenging for the judge to quickly resolve the matter. In some respects this is a “novel” situation in which a great deal is at stake for the involved parties and book publishing more broadly.

A settlement hearing is scheduled for October 7.

Scores of companies, interest groups and even governments line up on each side. Accordingly a range of competing values and interests will need to be balanced: the agreement of the immediate parties, the larger public interest, competition in the market, copyright law of other nations and so on. Separate from the court proceeding there’s a hearing tomorrow in the House Judiciary Committee about the matter.

For its part, Google recently established a site to show who supports the settlement. Among others, Sony Corp. (which has a deal with Google and competes with Amazon in the eReader market) and the Authors Guild also support the settlement. The latter slams settlement opponent Amazon as a book industry monopolist and argues the settlement fosters competition.

There’s no question that books will be digitized and put online; the momentum behind it is growing. The question is how will that happen, who will control the process and who have access to the spoils of those efforts. Microsoft, which abandoned its own book scanning efforts some time ago, claims that the Google settlement amounts to an illegal joint venture that will provide the parties to the settlement with special and exclusive rights and privileges not permitted to others.

Antitrust lawyer Gary Reback, who filed a brief on behalf of the Open Book Alliance, a group that includes Google opponents Microsoft, Yahoo and Amazon, argues that the settlement is currently “illegal” but could be cured if the government requires Google to license the database of scanned books to third parties (e.g., Microsoft, Amazon, et al) for a “nominal” fee. The irony is that Reback was instrumental in the Microsoft anti-trust litigation several years ago. He’s representing the group that includes Microsoft, using similar arguments against Google. According to the Wall Street Journal:

In an interview, Reback likened the misdirection to Microsoft’s posture with software developers in the past. He said that Microsoft had years ago told software developers that the company wouldn’t take advantage of its own applications on its Windows Operating System platform over theirs–but later backtracked. “They changed their position and had an economic consequence to the industry that became one of the main animating effects of the lawsuit,” Reback said, referring to the Justice Department case that Microsoft settled.

The “misdirection” referred to in the statement above is Google’s alleged “misleading” of publishers “by years ago stating that it was scanning books to create a ‘card catalog’ of works before changing its mind and getting into the digital book-selling business.” Do the arguments of the Book Alliance members, which abandoned their own book-scanning efforts and which now apparently seek access to the Google books database, amount to trying to get something for nothing? What is fair and reasonable here?

This notion of forcing Google to license its database  for a “nominal” fee to competitors is unlikely to prevail, although the notion of providing greater access to the database will probably resonate with the court and legislators. Trying to find a fair solution when persuasive arguments are being made both for and against the settlement (but most parties are self-interested in one way or another) will be particularly challenging.