Amazon: Congress, not Google, should make digital book policy

In its stinging rebuke (PDF) of the Google Books settlement, Amazon lays out the full, horrendous ramifications of the deal: it rewrites copyright law, creates a monopoly in perpetutity, short circuits debate on the issue and takes the matter out of Congress' hands.

Here's the major points of the argument, taken from the introduction to Amazon's 49-page brief. The settlement should be rejected because:

• It unfairly locks authors and publishers into a compulsory license for the life of the copyright.
• It violates antitrust because it gives Google an effective monopoly in the scanning and exploitation of works by authors who can't be found or who choose to opt out.
• It creates a cartel of authors and publishers "operating with virtually no restrictions on its actions," which can raise book prices and reduce output to the detriment.
• It constitutes price fixing by the rightsholders, "who are agreeing collectively on a mechanism for setting the highest possible prices to be charged for their works."
• Most importantly, it "releases Google from claims of copyright infringement for future uses of copyrighted works" -- some of which have nothing to do with issues in the case.

As I've argued before, and Amazon puts so well in this brief, what's being decided here are hugely important social, cultural and policy decisions that properly belong in the sphere of political debate and decision-making -- not in a court approval of a private settlement agreement.

Class actions can resolve disputes between parties and can clarify the law for others, but they cannot make changes to the rules in a way that applies evenhandedly to the entire universe of copyright holders and potential users of the new technologies. Nor is a court holding a hearing on the fairness of a class action settlement equipped to balance and make the adjustments necessary to accommodate the many public interests at stake when a new technology emerges that offers both the promise of public benefit and the danger of abuse of both copyright holders and consumers.

In fact, Congress has grappled with the question of orphan works - works under copyright under older regimes, the authors of which cannot be found - and come up with quite different regimes than that proposed by Google. To illustrate this point, Amazon compares how the two companies would be treated: Amazon under the law, Google under the settlement:

Following notification, Amazon would have to completely cease exploitation of the subject works; if it fails to do so, Amazon faces injunctive relief. By contrast, Google would not have to remove the subject works from its collection following notification. Instead, the Proposed Settlement affords it a safe harbor, thereby immunizing Google from injunctive relief. Simply put, the Proposed Settlement tilts the playing field by liberating Google (and Google alone) pursuant to a uniquely liberal set of eligibility requirements, at the same time that each and every one of Google’s competitors would remain subject to the more rigorous requirements and penalties likely to be found in the orphan works legislation.