The Open Book Alliance today formally filed Amicus Curiae in opposition to the proposed settlement between the Authors Guild, Inc., Association of American Publishers, Inc. and Google, Inc.
The OBA filing states, “The torrent of criticism to the settlement may have produced amendments to the class definition, but it has not affected Google’s conduct one iota…..All in all, little has been accomplished, save from Google’s perspective as it continues to build its lead over competitors. …The Court’s procedures are ill-suited for resolution of what is now at stake in this matter – rewriting the copyright law, restructuring the publishing industry, and maintaining a competitive search market.”
The proposed Google book settlement is not a philanthropic effort to bring literature into the 21st century and bridge a literary divide. In reality, Google is focused on becoming the sole owner of an immense digital library that will improve the company’s advertising-based search business. This de facto exclusive license will provide Google with an enormous advantage over its search competitors.
The brief explores the market importance of so-called “tail queries” – rare or obscure search requests that are hard to fulfill accurately. The brief explains how “[d]igital rights to virtually all out-of-print books provide Google with a decisive advantage in responding to tail queries.” The brief continues, “[i]f Google can deny its search rivals the ability to integrate the same corpus of books, Google’s lead in search will become insurmountable.”
The brief also uncovers “carefully crafted exceptions” inside the settlement regarding the Google Partner Program. Google has signed “Partner” agreements with thousands of publishers. Doubtless, many – if not all – of the named publishers in the settlement have their own agreements with Google that will govern the payments they receive from Google, in lieu of the provisions that were negotiated in the settlement for other class members. The brief states, “…[this] permits the parties to negotiate secret side deals to govern the economic terms of books licensed to Google under the Settlement at any time, even after a court review of the Amended Agreement, effectively evading judicial and public scrutiny…”.
The OBA believes that the proposed settlement threatens to bottleneck the access to and distribution and pricing of the largest, private digital database of books in the world. It would do so by using the class action mechanism to not only redress past harm, but to prospectively shape the future of digital book distribution, display and search.
In the Amicus, the OBA highlights five key reasons why the amended settlement is a “paltry proposal”:
The mass digitization of books promises to bring tremendous value to consumers, libraries, scholars, and students. The Open Book Alliance will work to advance and protect this promise. And, by...More
December 14, 2009
January 28, 2010
Deadline for authors to opt out of the settlement
January 28, 2010
Deadline to file objections and/or amicus briefs
February 4, 2010
Deadline to file notice of intent to appear at Fairness Hearing
February 4, 2010
February 11, 2010
Plaintiffs move for final approval
February 18, 2010
Final Fairness Hearing
March 31, 2011
Deadline to claim Books and Inserts