The settlement that ended the litigation against Google’s book scanning/search project must still be approved by the courts, although tentative approval has already been given. Among other aspects of the settlement, Google is to pay $125 million to fund a “Book Rights Registry” that will help resolve claims by authors and publishers and cover legal fees. But now, as the time for final court approval nears, a range of objections are coming out.
One such objection is coming from a group based at NYU law school, an effort partly funded by Microsoft. There have accordingly been some questions about the “independence” of this initiative. But another prominent voice to object to the settlement, without any perceived conflict of interest, belongs to UC Berkeley Law School professor Pamela Samuelson. She is the director of the Berkeley Center for Law & Technology at Boalt Hall (the law school) and an expert on intellectual property and the internet. In a blog post, Samuelson raises a number of significant technical-legal and policy objections. Here are her summary remarks at the end:
In the short run, the Google Book Search settlement will unquestionably bring about greater access to books collected by major research libraries over the years. But it is very worrisome that this agreement, which was negotiated in secret by Google and a few lawyers working for the Authors Guild and AAP (who will, by the way, get up to $45.5 million in fees for their work on the settlement—more than all of the authors combined!), will create two complementary monopolies with exclusive rights over a research corpus of this magnitude. Monopolies are prone to engage in many abuses.
The Book Search agreement is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a major restructuring of the book industry’s future without meaningful government oversight. The market for digitized orphan books could be competitive, but will not be if this settlement is approved as is.
Samuelson also offers a slide presentation on the subject (available here). A post at BoingBoing by editor and novelist Cory Doctorow similarly objects to the settlement. We’ll probably see more such criticism and objections to the settlement (both formal and hyperbolic) as the June 11 hearing date approaches.
The question is: how seriously do we take these objections? Beyond writing some short pieces, I have not looked closely at the settlement terms nor have I truly considered their implications. Samuelson’s arguments made me think, however, that the court must carefully consider whether what she’s saying in the second paragraph of the excerpt above is the potential outcome of approving the settlement as is.
Microsoft and Yahoo both shuttered their book scanning projects, so Google in a way can’t and shouldn’t be blamed for gaining access to the spoils of persistence. But while it’s great to make books more widely available to the public through the internet, Google should not be given a “monopoly” over any aspect of book publishing or distribution.