Microsoft: Google Books is illegal 'joint venture,' not settlement

Microsoft: Google Books is illegal 'joint venture,' not settlement

Summary: In its objection, Microsoft paints Google Book deal as a joint venture designed to stifle competition, not a settlement between opposing parties.


The Google Books settlement resembles not a compromise position between two opposing parties but a "joint venture" between business partners, Microsoft charges in its objection to the settlement. Indeed, Microsoft cites the publishers' law firm promoting the deal as just that.

The final settlement is a complex license, involving a worldwide class of millions of copyright owners, and resembles a joint venture among publishers, authors, Google and the libraries that provide books to Google for scanning.

That's wholly inappropriate for a class action settlement, Microsoft says, since the joint venture goes far beyond the scope of the dispute.

The complaints that commenced these cases in 2005 challenged the Google Library Program, which scanned books from library shelves to make them electronically searchable on Google’s website in order to display brief excerpts in response to searches. The proposed settlement does not resolve this narrow issue, but rather confers on Google a new monopoly by authorizing Google (and Google alone) to engage in the wholesale commercial exploitation of entire copyrighted books.

Isn't Microsoft just jealous? And couldn't they restart their own book-scanning operation if they wanted to? The difference, Microsoft says, is that it never violated copyright. Google did and as a result, it now presents this joint venture that gives it an exclusive pass on copyright law for past - and future(!) - violations. "No one can object to the laudable goal of creating universal and broadly accessible repositories of digital books," Microsoft says, noting that government and nonprofits as well as commercial companies have engaged in large-scale scanning operations.

These competitive and transparent efforts affirm the benefits of an open market, and the Constitutionally mandated legislative process ensures that the diverse interests of the many stakeholders are considered and balanced, accommodating copyright owners, online services, libraries and the public. The proposed settlement, on the other hand, pursues an illegitimate approach. Following closed-door negotiations that excluded millions of copyright owners and the very public that copyright law serves, Google and the plaintiffs seek to arrogate public policymaking to themselves, bypass Congress and the free market, and force a sweeping “joint venture” – built on copyrights owned by a largely absent class – via this Court’s order.

The proposed settlement would usurp the role that Article I, Section 8 of the Constitution vests in Congress alone to alter the copyright laws in the face of new technologies, a role that Congress actively pursues in legislation to make orphan works more widely available, to enact copyright exceptions for libraries to further their mission, and to meet other changing needs.

The brief points out four basic facts that show just how inapporpriate the settlement is, Microsoft says.

  • Future infringements are covered by the settlement, affecting the exclusive rights of absent class members for the life of their copyrights.
  • The deal gives away to Google vast rights that were not contested in the underlying litigation. The lawsuits dealt with Google's displaying brief excerpts. Instead of compromising on that infringement, the parties instead agreed to give away the rights to display entire books.
  • The publishers who negotiated this deal each have undisclosed side deals with Google, which will likely give them better terms than the class will get.
  • The publishers plan to exclude their own works from the deal.

    The Registry Google would create gives it a built-in right to serve up and sell out-of-print and orphan words in perpetuity. Google alone would have 100 percent control of all orphan works for the life of their copyrights. Google alone would have a get-out-of-jail-free card when it comes to copyright and antitrust. The deal is a collusion between publishers and Google that short-shrifts authors, deprives readers of competition, and cuts other companies' book offerings off at the knees.

Topics: Google, Enterprise Software, Legal, Microsoft

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  • M$ is envious

    They could not embrace and extend, so it sound like sour grapes.
    Linux Geek
    • You Have No Idea What It Is

      Many writers has put this very closed to "THIEF" (CBC Radio prgram: As It Happens Sept 8, 2009) or GOOGLE it. Check the facts before you say.
  • oh the tragedy.....

    Sounds like a win-win for everyone. I am quite suprised they came up with a deal that didnt transfer money.

    I wonder if they pulled the old.. virutal library card. The one that libraries use for digital works.
  • Now if Google could just come up with...

    a competing desktop OS I think that would just about finish Balmer off. I've never seen such a case of Google envy or any case of envy as the case MS has.

    What other venture could Google start that would rattle MS. RR bankrupted communism in the arms race. It appears Google might be trying the same ploy with MS - BRILLIANT.
  • RE: Microsoft: Google Books is illegal 'joint venture,' not settlement

    Anything Microsoft objects to so vehemently must be a
    benefit to mankind. After 20+ years of being a slave to that
    company's products, I'm finally free of them and am happy as
    a result. The only useful purpose that company serves is to
    show their competition how NOT to do things.
    • Preferential slave master?

      So you hated being a slave to Microsoft in the past but are happy as a clam to be Google's slave in the future?

      C'mon. Put your hatred for one party aside and really look at the issues here. Google stands to gain more control over literary content that Microsoft ever has and ever will over desktop operating systems (which has be on the slow decline for a years now). The big difference is, consumers and the government can take legal action against Microsoft. In this case, Google has immunity granted by the court.
  • RE: Microsoft: Google Books is illegal 'joint venture,' not settlement

    Mostly good points but I wouldn't trust Microsoft as far as I could thrown them. They never do anyting without bottom line impact in a big way. All they really want is a big piece of that pie.
  • RE: Microsoft: Google Books is illegal 'joint venture,' not settlement

    I don't trust MS, either. But they're right. This gives WAY too much away to Google, and usurps Congress' responsibility to make copyright law.
    Unkie Tripps
  • RE: Microsoft: Google Books is illegal 'joint venture,' not settlement

    Seems like it is actually possible to do something illegal and anti-competitive that goes against Micro$ofts interests.

  • Absolutely don't have to trust Microsoft but that doesn't make them wrong

    While Microsoft's intentions are probably not exactly noble, they are pointing out a major problem with the ruling. Google is getting sole immunity to copyright infringement now and in the future. If it was Microsoft that was in Google's position, I'd wager there'd be street protests and a truckload of attorneys building their anti-trust/compete suit already.

    No one party should be grant what Google got in this case especially since the scope was expanded way beyond the original infringement. Not Microsoft, not Google, or any of these commercial entities.