Public Knowledge today told a Federal court in New York that the settlement between Google and the Authors' Guild over Google Book Search should not be approved in its present form. The brief is available here.
“Public Knowledge Google Book Search Amicus Brief”
In particular, Public Knowledge said it is concerned about the aspects of the complicated settlement that deal with orphan works — works whose copyright holders are unknown or who cannot be found.
Under the settlement access to all orphan works would be governed by a Book Rights Registry (BRR), established under the terms of the settlement, which would give Google the sole rights to license orphan books.
In objecting to the settlement on antitrust grounds, Public Knowledge said in its brief: “While public access to orphan works is a goal towards which amicus and the parties all strive, it is necessary that this access be open to all comers on a level playing field. Access through one rights organization governed by non-representative authors and publishers (see Proposed Settlement § 6.2(b)) and a single distributor is not truly access at all, and such a solution ultimately benefits neither artists nor the public.”
Creating such a Registry and giving it the sole control over orphan works would rework copyright law far beyond what a lawsuit settlement like this should do, PK said, arguing: “In essence, the default rules of copyright will be rewritten without the input or consent of Congress, and only for Google and the Books Rights Registry. The law does not support such an outcome: the mechanism by which the parties currently hope to license the ability to display digitized books exceeds the limits of class action procedure and produces anticompetitive limitations on access to orphan works.”
If the settlement were approved, Google would gain a great advantage over every other party wishing to make use of an orphan work because Google would not risk the copyright liability that comes with using an orphan work. According to the brief: “Since no party other than Google can license the use of orphan works, Google will have an absolute monopoly on selling access to these works. The agreement prevents Google from licensing to others the use of any of the scanned works (Proposed Settlement § 2.2), and unless the Agreement allows the BRR to license orphan works to other parties, this means no other entity has the legal ability to display or distribute orphan works. While the number of orphan books at stake may be debated, it remains true that for every single work orphaned, Google becomes the only permitted user, insulated from potentially massive copyright liability.
“We believe that the original Google Book Search, which offered snippets of text to consumers, was legal to begin with and in accord with fair use principles,” said PK Legal Director Harold Feld. He added: “However, the settlement of this suit goes far beyond the original Book Search program. The ends cannot justify the means. Even if access to orphan works could run roughshod over restrictions placed on class action to engage in such a wholesale reworking of the law, it could not justify creation of a permanent monopoly on such access. The current defects in copyright law that create the unfortunate problem of orphan works must be rectified by Congress in a manner that provides equal access to these works for all.”
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