What Experts Are Saying About the Settlement

The Parties: Association of American Publishers, the Authors’ Guild, and Google

“Richard Sarnoff, chairman of the Association of American Publishers … said that some aspects of the massive settlement would be ‘difficult to replicate’ for Google’s competitors.”

–Richard Sarnoff, quoted in Publisher Speculates About Amazon/Google e-book “Duopoly”, Ars Technica, Feb. 23, 2009

“Mr. Macgillivray [from Google] said that [a potential rival could follow] in its footsteps — namely, by scanning books without explicit permission, waiting to be sued and working to secure a similar settlement.”

–Alex Macgillivray, quoted in Google’s Plan for Out-of-Print Books is Challenged, New York Times, April 3, 2009

‘We don’t like monopolies, we would like duopolies. But what are we supposed to do?’ asked Pat Schroeder, who served as president of the Association of American Publishers until May 1.”

–Pat Schroeder, quoted in Google Gives Home to ‘Orphan Books’, National Journal, May 9, 2009

“We are not scanning all those books to be read by people …. We are scanning them to be read by [our] AI.”

–Google Engineer, quoted in Nicholas Carr, The Big Switch: Rewiring the World From Edison To Google 223 (2008)

Government Officials

“…if you look this settlement, in effect it’s a compulsory license for the benefit of one company.” 

–Marybeth Peters, Register of Copyrights, “The Google Settlement, What It Will Mean for the Long Term,” panel on “Legislating Through Settlement,” workshop at Columbia Law School, March 13, 2009

Academic Community

“The proposed settlement agreement would give Google a monopoly on the largest digital library of books in the world. It and the BRR, which will also be a monopoly, will have considerable freedom to set prices and terms and conditions for Book Search’s commercial services.”

–Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information Management University of California, Berkeley School of Law, Legally Speaking: The Dead Souls of the Google Booksearch Settlement, O’Reilly Radar, April 17, 2009 (Forthcoming in Communications of the ACM; July 2009)

Google will walk away from the settlement agreement with a huge competitive advantage,”

–Randal C. Picker, law professor at the University of Chicago, quoted in Google in dispute over book project, San Jose Mercury News, May 3, 2009

Isn’t this a tremendous anti-trust problem? Google has essentially set up a huge compulsory licensing system without the legislation that usually makes such systems work.”

–Siva Vaidhyanathan, Associate professor of Media Studies and Law at the University of Virginia, My Initial Take on the Google-Publishers Settlement, The Googlization of Everything, October 28, 2008

Before the court approves this agreement, then, it must consider the deal’s anti-competitive effects. … Of course, Google was already in a dominant position because few companies have the resources to scan all those millions of books. But even fewer have the additional funds needed to pay fees to all those copyright owners. The licenses are essentially a barrier to entry, and it’s possible that only Google will be able to surmount that barrier.”

–James Gibson, University of Richmond School of Law, Google’s New Monopoly?, The Washington Post, November 3, 2008

Libraries and Archives

“But the part of the settlement that deals with so-called orphan books — which refers to out-of-print books whose authors and publishers are unknown — is what’s ruffling the most feathers in the literary henhouse. … ‘[The settlement] will make Google virtually invulnerable to competition,’ says Robert Darnton, head of the Harvard University library system. Although competitors could scan orphans, they would not be protected from copyright suits as Google is under the agreement. ‘They’d face lawsuits all over the place,’ making the risk too big, said Darnton. Without competition, pricing could go wild, critics claim. The registry, which oversees pricing, is comprised of authors and publishers who stand to benefit from high subscription fees. ‘There will be no incentive to keep prices moderate,’ Darnton says.”

–Robert Darnton, Harvard University Library, quoted in Libraries Fighting Google’s Book Deal, Time, June 17, 2009

“The settlement also gives Google and the BRR, and no one else, the right to use the orphaned works in this way.”

–Paul Courant, University Librarian and Dean of Libraries, University of Michigan, Orphan Works Legislation and the Google Settlement, Au Courant, March 15, 2009

It’s not that expensive. For the cost of 60 miles of highway, we can have a 10 million-book digital library available to a generation that is growing up reading on-screen. Our job is to put the best works of humankind within reach of that generation. Through a simple Web search, a student researching the life of John F. Kennedy should be able to find books from many libraries, and many booksellers — and not be limited to one private library whose titles are available for a fee, controlled by a corporation that can dictate what we are allowed to read.

–Brewster Kahle, Founder and Director of the Internet Archive , A Book Grab by Google, Washington Post, May 19, 2009

Consumer Groups and Others

“The settlement also provides a mechanism for Google to deal with “orphan works.” Orphan works are works under copyright, but with the rights holders unknown or not found. The danger of using such works is that a rights holder will emerge after the book has been exploited and demand substantial infringement penalties. The proposed settlement protects Google from such potentially damaging exposure, but provides no protection for others. This effectively is a barrier for competitors to enter the digital book business.”

–Jamie Court, Authors and Consumers Uniting Against Google, Consumer Watchdog, April 29, 2009

Under the settlement, Google would have a permanent license to scan and sell ads next to orphan books. It argues there is little interest in these orphan books and that others can scan and put them online, too. Though that’s theoretically true, it’s unlikely any organization without Google’s size and resources would make the same bold move – risking thousands of lawsuits to test whether these books can be legally sold by anyone other than their authors or publishers. That, critics say, creates, in practice, a monopoly.

–Editorial Board, Is Google Playing by the Book?,  Christian Science Monitor, August 7, 2009

Under its current design, Google Book Search keeps track of what books readers search for and browse, what books they read, and even what they ‘write’ down in the margins. Given the long and troubling history of government and third-party efforts to compel libraries and booksellers to turn over records about readers, it is essential that Google Books incorporate strong privacy protections in both the architecture and policies of Google Book Search. Without these, Google Books could become a one-stop shop for government and civil litigant fishing expeditions into the private lives of Americans.

Letter to Google CEO Eric Schmidt from Electronic Frontier Foundation, American Civil Liberties Union and University of California Berkely Lecturer, July 23, 2009

“While we want to encourage access to orphan works, we want to make sure that the settlement doesn’t create an anticompetitive situation. In the proposed settlement, only one entity—the Book Rights Registry (which will be initially run by the Authors Guild and the Association of American Publishers)—will be granting the licenses to use these absent authors’ works. Meanwhile only one entity—Google—will be able to use these licenses.  … In an ideal world, the law would allow equal access to licenses for orphan works as one part of a more comprehensive orphan works solution. These licenses would be available to anyone who wanted to digitize and provide access to orphan works. Unfortunately, it’s not entirely clear that this settlement does that, or can.”

Press Release from Public Knowledge, April 30, 2009

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What Experts Are Saying About the Settlement…

Important Dates

December 14, 2009
Notice begins

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
DOJ response

February 11, 2010
Plaintiffs move for final approval

February 18, 2010
Final Fairness Hearing

March 31, 2011
Deadline to claim Books and Inserts