Justice Dept. Opens Antitrust Inquiry Into Google Books Deal

Mad Hamster points out a NY Times report that the US Department of Justice has launched an antitrust inquiry (may require free registration) to take a look at the deal Google has made with book publishers and authors for its Book Search service. Quoting: "Lawyers for the Justice Department have been in conversations in recent weeks with various groups opposed to the settlement, including the Internet Archive and Consumer Watchdog. More recently, Justice Department lawyers notified the parties to the settlement, including Google, and representatives for the Association of American Publishers and the Authors Guild, that they were looking into various antitrust issues related to the far-reaching agreement. The inquiry does not necessarily mean that the department will oppose the settlement, which is subject to a court review. But it suggests that some of the concerns raised by critics, who say the settlement would unfairly give Google an exclusive license to profit from millions of books, have resonated with the Justice Department." Update — 4/29 at 14:25 by SS: CNet has new information on the extension Google was seeking in order to contact rightsholders for a decision on whether to join the settlement or opt out. Google had originally asked for 60 days, but a judge has now granted them four more months.

Comments

Business is business

[BadAnalogyGuy]

Google licenses these works for a fee, and gains the right to redistribute.

Other parties don't license the works, and they complain they are shut out of the market.

Didn't Netscape cry foul in the same way? I'd hate for the Internet Archive to suffer the same fate as Netscape.

Re:Business is business

[drinkypoo]

Google licenses these works for a fee, and gains the right to redistribute.

Usually, in order to get a license you have to get it from someone with the actual legal right to give it. Although, of course, anything is legal if a court decides so...

Re:Business is business

[Maximum Prophet]

Check out compulsory licenses, http://en.wikipedia.org/wiki/Compulsory_license

Congress could easily put the orphaned book deal into law, whereby anyone could declare a book orphaned to a government agency that would look the book up in what's currently being published. If it's not, you would pay a royalty to that agency, who would keep the money in escrow in case the copyright owner comes forward. If and when they do, they could make a deal with you to keep publishing, or politely ask you to stop. Such a law would be a much better deal than a specific settlement between one company and the guilds.

Re:Business is business

[DerekLyons]

Congress could easily put the orphaned book deal into law, whereby anyone could declare a book orphaned to a government agency that would look the book up in what's currently being published.

Or, in other words, all it takes is one person to decide that they want to override your legal rights and then complain to the appropriate agency to have some faceless bureaucrat to override your legal rights.

If it's not [currently published, whatever that means], you would pay a royalty to that agency, who would keep the money in escrow in case the copyright owner comes forward.

In other words, a faceless bureaucrat can override the rights holders legal right to negotiate royalties or to deny the right to reprint outright.

If and when they do [step forward], they could make a deal with you to keep publishing, or politely ask you to stop.

In other words, the rights holder is now forced to live with the fait accompli of the faceless bureaucrat and hope they can come to deal with the person or company that republished his work without his permission.
 

Such a law would be a much better deal than a specific settlement between one company and the guilds.

Such a law would be a travesty, just like this 'settlement'.

What is actually happening?

[PetriBORG]

Can anyone actually correctly summarize what is going on with this Google book deal, I find it hard to believe that Google is trying to gain exclusive rights over all these unclaimed (copyright wise) books completely and forever for all copies of this book everywhere.

Isn't it really that they just want rights to put up the books that they scanned (and some people that had agreements with them to help scan)? Is there something that would stop people from rescanning those books and posting them up some place else?

Links to clear sources would be best... Where's my Google Security Blanket(TM)!

Re:What is actually happening?

[Richard_at_work]

The issue seems to be that Google is getting their blanket 'permission' to do what they want to do from a third party which may or may not have the actual legal right to give Google the blanket permission. From what I have read, it sounds very dodgy.

Re:What is actually happening?

[Chyeld]

No, however an issue is folk like you spouting off without knowing what they are talking about, muddying the waters.

The actual real issue is thus:

Right now, Google has been hit with a class action lawsuit on behalf of pretty much every author ever, because it's a class action, if you are a member of the class you are bound by the settlement terms unless you opt out of the class before the deadline in May.

The current settlement agreement provides Google with a number of things, in return for a number of things from Google. However, the biggest issue worrying people is that Google will receive a license to republish out of print books on demand. The so called "orphan works" which are not yet in public domain but are also no longer being printed and therefore can only be found if you are lucky enough to find one in a library or used book store.

They are (potentially) getting this license because as a class lawsuit, the lawyers running the plaintiff's side of the arguments are empowered to speak for all the members of the class and thus can legally agree to this even if the authors involved aren't actually aware of the settlement. Of course, if you are a member of the class and you think the lawyers are doing a crappy job, since all members of the class have an equal voice in the issue, you could always raise Cain to have your own lawyers replace the ones already doing the work.

What worries everyone is that since this license is granted via settlement through a class action lawsuit, many people feel that it would be impossible for anyone else to get the same license. And unfortunately, the judge in this case has already declined to allow other companies to 'join the defendant' so they can get in on the settlement.

All the rest of the noise and turmoil is bullshit and a tempest in a teapot, since part of the settlement will be you can opt-out of Google's publish on demand system if your works would count as 'orphaned works' and if your books are still published, then Google doesn't get the rights to sell you anything, without your explicit permission.

How this turns out is anyone's guess. It's possible that the settlement could go through, giving Google a fairly large mass of work which is out of publication but not yet in public domain, which in theory only they and the individual authors of those works would have permission to reprint. It's possible the settlement could be re-arranged to allow third parties to 'buy into' the setup, preventing anti-trust issues. Or it's possible that the settlement just gets tossed and we go back to square one.

This sort of highlights the flaws in our current copyright system. Not that this settlement is possible, but that there are actually works out there that would be covered by 'orphaned works' clause of it. The point of copyright was never to be "we give you exclusive rights to making copies of this book for a limited time period, then you remove it from our culture forever by burying it".

Re:What is actually happening?

[russotto]

I ran across this train of thought in another thread, and I disagree with it - there is nothing stopping someone archiving works of art today, and waiting until copyright expires to make them available later on.

The technology to archive works for that long doesn't exist. Sure, it would work for a few billion years, but the expansion of the sun would be a big problem, and if you get around that, the heat death of the universe is pretty much impossible to beat.

Re:What is actually happening?

[Chyeld]

The argument for opt-in/opt-out in this particular case basically boils down to whose side of the coin you want to favor when it comes to preserving access to works. If you believe in the Disney model where it's perfectly alright to remove your works from the public, till they become public domain, either because you don't want people to see them any more or to ensure the next time you publish the work (and thus renew the copyright because you remastered it and thus created a 'new' work) you'll have a high demand, then you want an opt-in system.

If you believe in the public good argument which points out the only reason you were given copyrights in the first place was so you could make money from your works in a set amount of time before they became public domain, then the entire concept of "orphaned works" is blasphemous from the start. Remember, the idea of copyright isn't "You control the idea" it's "You control the means to reproduction so everyone has to pay you to get a hold of the idea". In this case, you are for opt-out because while it's still against your beliefs that a book can be purposefully kept out of publication, it's at least the option that allows you to republish those works where the author didn't care enough either way to indicate their desire.

I think though, reading the above, you know my bias on the issue. To me, anything that is copyrighted can be considered a 'derivative work' based on the entire culture you were brought up in. You would not have been able to make it without that, and thus you shouldn't have sole right to control it forever. However, these days, that is what is going on, since many things that have been copyrighted will never physically last long enough to fall into public domain. How many movies and shows from the 1900's to the 1950's have been lost because the film they were printed on crumbled into dust a long time ago. How many books have been lost because they are no longer published and the pulp they were printed on has disintegrated by now.

By the time these works become public domain, how many of them will even be understandable given the inevitable drift in language?

Re:What is actually happening?

[Chyeld]

http://www.authorsguild.org/advocacy/articles/settlement-resources.html

from the Authors Guild page:

10/28/08 - Authors Guild v. Google Settlement Resources Page

On October 28, 2008 the Authors Guild, the Association of American Publishers and Google announced the landmark settlement of Authors Guild v. Google. On this page, we've gathered documents and links that will be of interest to authors and others regarding this settlement.

Critical Dates:

January 5, 2009: Notice is mailed to rightsholders around the world and published in newspapers and magazines. A preliminary list of books covered by the settlement becomes available to rightsholders.

September 4, 2009: The last day to opt out of the settlement as a whole.

October 7, 2009: A court hearing will take place to determine the fairness of the settlement.

January 5, 2010: Deadline for filing claim for cash payment for Google's pre-settlement scanning and digitization of books.

Bolding added by me.

So I may have overspoke when I said the class action was "for every author ever", it looks as if it's for "any author that had a book in the libraries in question".

Re:What is actually happening?

[PhilHibbs]

I don't care about any individual copyright holder that doesn't know about this deal. I don't really care about Google. What I care about is that no-one else can compete with Google in the same market, because they haven't been sued yet.

Re:What is actually happening?

[topherhenk]

Since this license to reprint exists for books that have not yet been written, I would say there is the ability to have future violations. Google will be free to reprint future books long after this case fades from the headlines, and the authors do not realize they need to opt out.

...to profit from millions of books...

[Anonymous Coward]

... which have, until now, been almost completely unavailable to the public. You know, out of print.

Inter-library loans are great and all, but what about when no library anywhere has a copy remaining on hand? Or, more practically, when no library in your particular state/country/jurisdiction has a copy which you are allowed to check out? Very dog-in-a-manger, yeesh.

That raises a question

[mysidia]

How the heck do you change a case against you into an exclusive agreement in your favor?

When you've committed a tort, it's generally you the defendant that has to be making concessions..

It seems like the exclusivity provisions should be stricken from the settlement, and it should just be a matter of authors offering google the privileges and duties they want in exchange for fair compensation.

The option should be left open for the publishers to negotiate similar deals with other services in the future.

The Settlement explained

[Miracle Jones]

If you guys really want to understand all of this stuff, as I did, I suggest you listen to my interview with Professor James Grimmelmann, who is writing a long, long, long brief examining all the issues for the court about this settlement in an amicus brief from the New York Law School.

He went to Harvard and Yale, interned for the Creative Commons, and used to be a programmer at Microsoft.

It's a lengthy interview, but we cover all the important stuff.

http://www.fictioncircus.com/news.php?id=356&mode=one

Questioning the whole idea of "antitrust"

[brian0918]

A trust is not inherently bad. So long as no individual rights are violated, there is no cause for concern, and certainly no reason for the government to get involved. Of course, service may degrade, but as it does, customers should be free to switch to alternatives, and other individuals/companies should be free to create and offer those alternatives.

Re:Questioning the whole idea of "antitrust"

[Red Flayer]

Brian, I've noticed from your posts recently that you're pretty much a Mises/Randroid, so I'll understand if we can never find common ground. Just please understand that your arguments have been heard before, and addressed before, a dozen times.

A trust is not inherently bad. [...] customers should be free to switch to alternatives, and other individuals/companies should be free to create and offer those alternatives.

Yet barriers to entry, whether regulatory or otherwise, prevent entry into the market for a small competitor (and therefore there is no place for organic growth into a large competitor). Since we cannot ever have an ideal free market (in the economic sense), we will always have barriers to entry, even if all regulatory barriers were dropped.

Therefore, by default, a trust is bad, because it limits the potential for competition.

I'd like to point out to you that even the Austrian school of economic thought recognizes that corrections must be made for monopolies -- because even if they do not "abuse" their status (which they will, according to most all economic theory), they do limit competition by the very nature of the market. Trusts and monopolies ARE inherently bad, because they limit the ability of the economy to efficiently allocate resources.

Re:I love libraries, but they are obsolete

[east coast]

Why wouldn't they stand in the way? How is downloading a book and different from downloading an album or a movie?

And I'm asking these questions in sincerity. It seems that, for the most part, Slashdotters have a different way of handling the issues the arise from the medias differently. It's almost as if writers get treated with kids gloves in comparison to their musician and film producer peers. If you'd replace "writers guild" with "RIAA" and/or "MPAA" you'd go from people talking over the issue with a somewhat level head to one where we'd hear howls for blood and unflattering references to their sexual preference. But the truth is that these issues are the same, all of them have the same problems and all of them have the same legal protections.

Re:Uh-oh... somebody didn't pay their bribes...

[StreetStealth]

Actually, they are not distant issues.

The Sherman Anti-Trust Act was ostensibly passed to protect consumers from the problems inherent in a market free of competition.

Google seems to be in the position to have a monopoly in the book indexing market. Goldman Sachs, Bank of America, and others hold an oligopolistic position on a panoply financial instruments. In both cases, competition would be/would have been beneficial for the consumer, but only in the former do we see any motion to investigate.