06 April 2009

Google's Perpetual Monopoly on Orphan Works

Here's an interesting analysis of the Google Book Search settlement. This, you will recall, resolved the suit that authors and publishers brought against Google for scanning books without permission - something it maintained it could do without, since it only wanted to index its contents, not display them in their entirely.

At first this looked like an expensive and unnecessary way out for Google: many hoped that it would fight in the courts to determine what was permitted under fair use. But as people have had time to digest its implications, the settelement is beginning to look like a very clever move:

Thanks to the magic of the class action mechanism, the settlement will confer on Google a kind of legal immunity that cannot be obtained at any price through a purely private negotiation. It confers on Google immunity not only against suits brought by the actual members of the organizations that sued Google, but also against suits brought by anyone who doesn’t explicitly opt out. That means that Google will be free to mine the vast body of orphan works without fear of liability.

Any competitor that wants to get the same legal immunity Google is getting will have to take the same steps Google did: start scanning books without the publishers’ and authors’ permission, get sued by authors and publishers as a class, and then negotiate a settlement. The problem is that they’ll have no guarantee that the authors and publishers will play along. The authors and publishers may like the cozy cartel they’ve created, and so they may have no particular interest in organizing themselves into a class for the benefit of the new entrant. Moreover, because Google has established the precedent that “search rights” are something that need to be paid for, it’s going to be that much harder for competitors to make the (correct, in my view) argument that indexing books is fair use.

It seems to me that, in effect, Google has secured for itself a perpetual monopoly over the commercial exploitation of orphan works. Google’s a relatively good company, so I’d rather they have this monopoly than the other likely candidates. But I certainly think it’s a reason to be concerned.


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