The Open Book Alliance (OBA) has 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 that the torrent of criticism to the settlement may have produced amendments to the class definition, but it has not affected Google’s conduct. It further states that 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, says the OBA. 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 licence will provide Google with an enormous advantage over its search competitors, the OBA argues.
The brief explores the market importance of so-called ‘tail queries’ – rare or obscure search requests that are hard to fulfill accurately. It explains how digital rights to virtually all out-of-print books provide Google with a decisive advantage in responding to tail queries. The brief further states that if Google can deny its search rivals the ability to integrate the same corpus of books, its 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. 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 the company in lieu of the provisions that were negotiated in the settlement for other class members. The brief states that 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.
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