Last Friday the parties to the US Google Book Search litigation filed a revised settlement proposal. The original proposal had drawn vociferous objections from the French, German, and US governments, as well as from authors, publishers, libraries, academics, and consumer groups across Europe and the world, writes David Wood, legal counsel for the Initiative for a Competitive Online Marketplace (ICOMP).
The revised proposal does not fix the serious problems that led to widespread European condemnation of the settlement. Although some European works will technically now fall outside the scope of the settlement, Google appears intent to continue copying and engaging in "snippet" display of copyrighted European works through its existing arrangements with American libraries. To say the least, the revised settlement is a massive disappointment.
Google's newest proposal, like the earlier version, is a disaster. It would give Google a monopoly over millions of the world's books. It would also further entrench Google's dominance in search, stifle innovation and harm consumers in a vitally important sector of the internet ecosystem. It should be - and for the good of the internet must be - rejected.
ICOMP, like many others, objected to the original settlement proposal because it would have granted Google de facto exclusive rights for the digital distribution of millions of orphan works as well as many other books. It also would have given Google a virtual monopoly over the ability to search books online, further strengthening its dominant position in online search and search advertising.
The revised settlement proposal does nothing to fix these problems. New provisions only give retailers the ability to "resell" access to Google's scanned copies of books to consumers. It also essentially guarantees that no other commercial entity, either in Europe or elsewhere, will be able either to access or replicate the database that the settlement proposal places under Google's sole control. Consumers wishing to search for books online will have to use Google or nothing.
The revised provisions on orphan works are similarly a failure, as Google still gets to keep a significant share of any profits from orphan works and to maintain its grip on online access to orphan works.
If Google were serious about allowing meaningful competition, the settlement would allow any company to access copies of orphan works scanned pursuant to the settlement on the same terms as Google. This would have been a simple fix to make and would have alleviated many of the most serious competition concerns.
Equally disturbing is that this settlement will give Google inordinate influence over Europe's own efforts to develop online digital libraries. It will give Google overwhelming influence over how much consumers and libraries pay for access, and how much authors and publishers earn. It is clear that Google's pricing in the US will also have a strong influence on the pricing of any similar digital library project that emerges in Europe.
Without competition, Google will face no pressure to innovate, to improve its services, or lower its prices. Online access to millions of books will remain locked up in the database of a single American company, and only Google will have the key. The world's literary heritage is simply too important to abandon to such a fate.
This was first published in November 2009