Google says it would make books available to Amazon, Copyright Office says deal 'usurps' Congressional role

Register of Copyrights Marybeth Peters says Google Books deal usurps Congress's constitutional duty to set copyright law.
Written by Richard Koman, Contributor

Google's David Drummond is making promises on the fly during today's House Judiciary Committee hearing. He just announced that Google would make books covered under the settlement available to competitors like Amazon or Microsoft on a reseller basis -- and Google would share the majority of their revenue.

Asked by an approving Chairman John Conyers for Amazon's reponse, Amazon's Paul Misener explained that Amazon didn't much cotton to the idea of having to go through Google instead of purchasing rights directly.

In his oral comments, Misener made the point that the deal is in fact exclusive (note, all quotes are real-time paraphrases, not exact):

The settlement gives Google exclusive, liability-free rights to orphan works. It goes further, it releases them from liability not just for past acts, but prospectively. Google gets everything. What does a competitor get? Nothing, except what is opted into the Registry by rights holders. Competitors are limited only to rights holders who have opted in their works. Ggets everything less some opt-outs. competitiors gets nothing plus soome opt-ins. And orphans by definition don't make an option. They don't opt out of the google corpus and they don't opt in to the competitor corpus.

In her opening statement, Register of Copyrights Marybeth Peters argued that the settlement largely usurps Congress's role in making copyright law. "To allow a commercial entity to sell such works without consent is an end-run around copyright law as we know it," Peters said.

While aspects of settlement have merit, key parts are fundamentally at odds with the law. They impinge the exclusive rights granted to copyright holders. The settlement agreement creates a compulsory license and covers behavior not part of the dispute. It would alter the landscape of copyright law -- which is the purview of Congress, not the courts. It would jeopardize the efforts of Congress to craft comprehensive legislation. In the view of the Copyright Office, the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress.

In addition, Peters said, the settlement has "serious international implications" that could impact U.S. obligations in treaties with foreign governments.

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