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.