The U.S. Department of Justice has opened a formal investigation into the settlement between Google and book publishers over the digital publishing rights to certain books, citing antitrust concerns. Judge Denny Chin, who is ruling on the settlement, received formal notice of an investigation from the DOJ and released the letter as part of the court docket concerning the case in the U.S. District Court for the Southern District of New York.
Google issued a statement: "The Department of Justice and several state attorneys general have contacted us to learn more about the impact of the settlement, and we are happy to answer their questions. It's important to note that this agreement is non-exclusive and if approved by the court, stands to expand access to millions of books in the U.S."
Google has recently embarked on a charm offensive , making the argument that Google really isn't that dominant a company and reminding everyone that the competition "is just a click away."
I quote from Google: "It's important to note that this agreement is non-exclusive..."
This is hardly being charming. Some might call it audacity or chutzpah, a more accurate term would be gross dishonesty. Why?
Keep in mind that if this settlement is approved, virtually all the books Google displays online in the U.S. will be without the permission of the copyright holders. For some 96% of the books in the scans that led to this sham lawsuit, no copyright holder has yet to come forward despite far more publicity than the settlement will get in the future. If the settlement is approved and Google's scanners will go into overdrive. Look for Google to be financially benefiting from books, some 99% of them being used without the author's permission. That's a consequence of the forced opt-in if you don't formally opt-out provision.
1. Google's claims of non-exclusivity are bizarre. Google doesn't have permission to use these books at all, so it certainly can't have exclusive permission in the usual legal sense.
2. By the terms of the settlement, Google gets to use these books without the author's permission, which means there will be no contact information for them in the database. I say that again, for all but 1-2% of the books, there will be no information in this database telling how to contact the author. That is very, very critical. In fact, that is the central element in Google's scheme.
Why? Because that means that no other publisher will be able to contact the copyright holder to get permission, at least not without a great deal of expense and time. So Google does have what the law would call a de facto exclusivity. It can do what no other publisher can do without substantial risk and expense.
Also, another publisher will only be able to get a settlement like Google's if they find similar dupes to sue them and spend years in court and millions of dollars. Until that happens, Google does have exclusivity, this time under the law, or at least the law as perverted by this settlement.
So yes, Google does effectively have the exclusive right to almost any books it chooses among all the out-of-print titles that are still in copyright. The only limitation are those whose copyright holders come forward and formally opt out, which will probably be about 1%, since most authors or their heirs will never hear about this agreement, particularly those overseas.
And keep in mind that, if this settlement is approved, all the financial incentives mean Google will NOT want to get people to formally opt-in or opt-out. In either case, Google lose a bit of its exclusivity.
Finally, and I can't say this enough, this settlement is about the U.S. copyright of virtually every book published in the world since 1922. Google doesn't point that out, and all their dupes, which is virtually everyone in the media, seems too clueless to figure that out for themselves.
And do you think that isn't going to tick off writers around the world, writers who'll turn their anger at Google into anger at the country that let Google get away with this rip-off?
We'll be the Ugly Americans to the writers of the world and I can't think of a group that I would less want to tick off. And as a writer, I wouldn't want to be defending my copyright in that hostile environment
--Michael W. Perry, Inkling Books, Seattle
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