The great bulk of the parties' proposal, including its most controversial provisions, flows not from the lawsuits filed in 2005 but rather from the needs and desires to achieve broader business goals, some of them flatly illegal. The business pressures and opportunities confronting the parties illuminate the scheme's anticompetitive effects and explain the reason that a broad collection oflibraries, consumer groups, small publishers, and commercial interests now oppose the proposal. If approved, the proposal will damage competition in scores of markets, particularly those dependent on web commerce.
For sure it is the only brief that starts with a history of John D. Rockefeller and railroad collusion. In the 19th century, the brief relates, the railroads colluded to fix prices and give a kickback to Rockefeller, creating the South Improvement Company in an anticompetitive scheme to jack up prices.
The parties before this Court have created in the Google Book Settlement their own modem day version of the South hnprovement Company. Google and the plaintiff publishers secretly negotiated for 29 months to produce a horizontal price fixing combination, effected and reinforced by a digital book distribution monopoly. Their guile has cleared much of the field in digital book distribution, shielding Google from meaningful competition. The parties now seek the Court's formal blessing to fix prices, restrain competition, and retard technological advancement. More specifically, they seek waivers in the enforcement of both our nation's antitrust laws (to create a horizontal cartel of thousands of book publishers through the contrivance of class certification) and the nation's copyright laws (to sell for their own benefit orphan books they do not own).