has negotiated with the Authors Guild and the Association of American Publishers (AAP) would, if approved, be settled as a class action on behalf of all book authors and publishers, with the Guild and AAP claiming to represent their entire respective classes. By acceding to the certification of these classes through the settlement, Google will get a license from all authors and publishers of books covered by the agreement (which is to say nearly every in-copyright book ever published in the U.S.) so that it can commercialize them through the Book Search.

Google’s new Monopoly

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. The BRR is unlikely to complain that the price is too high, the digital rights management technology is too restrictive, or the terms are too onerous.

Google will also be the only service lawfully able to sell orphan books and monetize them through subscriptions. The BRR will get 63% of these revenues that it will pay out to registered authors and publishers, even as to books in which they hold no rights. (Some unclaimed orphan work funds may go to charities that promote literacy.) No author whose books are in the corpus can get paid by the BRR unless he or she has registered with it.

Virtually the only way that Amazon. com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books. The scanner might then be sued for copyright infringement, as Google was. It would be very costly and risky to litigate a fair use claim to final judgment given how high copyright damages may be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms.

Dead souls

The Book Search settlement brings to mind Nikolai Gogol’s story, Dead Souls.

The Book search
agreement under
consideration is
not really a
settlement of a
dispute over
whether scanning
books to index
them is fair use.

Chichikov, its main character, travels around the Russian countryside to buy “dead souls” in an attempt to become a wealthy and influential man. In the early 19th century, Russian landowners had to pay annual taxes on the number of serfs—counted as “souls”— they owned as of the last census.

Chichikov offered to buy “dead souls” (serfs who had died since the last census) from the landowners. His plan was to acquire enough of these souls so that he could take out a large loan secured by his portfolio, and thereby become a wealthy man.

In Gogol’s story, Chichikov’s scheme falls apart. Rumors fly that the souls he owns are all dead and he flees the town in disgrace. In Google’s story, however, the dead soul scheme seems likely to pay off handsomely, as Google will have the exclusive right to commercially exploit millions of orphan books.

Representativeness?

As galling as it is to realize that the BRR and its registered authors and publishers will derive income from millions of books they didn’t write or publish, it is even more galling that copyright maximalists will almost certainly dominate the BRR governing board.

(The Authors Guild president, for example, complained about the “read aloud” feature of Kindle, denoting it a “swindle,” and a copyright infringement. The AAP is supporting legislation to forbid the U.S. National Institutes of Health from promoting “open access” policies for articles written

under NIH grants. And of course, the Authors Guild and AAP characterized Google as a thief for scanning books from research libraries.)

If asked, authors of orphan books in major research libraries might want their books to be available under Creative Commons licenses or even be put into the public domain so that fellow researchers could have greater access to them. The BRR will have an institutional bias against encouraging this or considering what term of access most authors of books in the corpus would want.

In reviewing the settlement, the judge is supposed to consider whether the settlement is “fair” to the classes on whose behalf the lawsuits were brought. He may assume the settlement is fair because money will flow to authors and publishers. But importantly absent from the courtroom will be the orphan book authors who might have qualms about the Authors Guild and AAP as their representatives.

Conclusion

In the short run, the Google Book Search settlement will unquestionably bring about greater access to books that major research libraries collected over the years. But it is very worrisome that this agreement, which was negotiated in secret by Google and a few lawyers working for the Authors Guild and AAP (who will, incidentally, receive up to $45.5 million in fees for their work on the settlement—more than all of the authors combined!), will create two complementary monopolies with exclusive rights over a research corpus of this magnitude. Monopolies are prone to engage in many abuses.

The Book Search agreement under consideration is not really a settlement of a dispute over whether scanning books to index them is fair use. It is a massive restructuring of the book industry’s future without meaningful government oversight. The market for digitized orphan books could be competitive, but will not be if this settlement is approved in its current form without modification.

 

Pamela Samuelson ( [e-mail]) is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley.

Copyright held by author.