Pam Samuelson offers some interesting reflections on the Google book search agreement. Her warnings are worth listening to. Prof. Samuelson is quite critical about the agreement and the new creature it contemplates- the Book Rights Registry (BRR).
The BRR is a to-be-formed entity which, among other things, will represent the interests of rightholders under the agreement and administrate the distribution of revenues among registered authors and publishers. Indeed, one of the big open questions concerns anti-competitive aspects of this class action settlement agreement. Though Google’s dominance in the domain of books digitization is hardly questionable, the competition issue is rather tricky. First, the permission to digitize and provide electronic access to books secured to Google under the agreement is not exclusive. In other words, rightholders are not binding themselves to doing business only with Google. Second, the agreement does not contain any explicit statement compelling the BRR – a non-for-profit entity having equal representation of Authors and Publishers in its board – to deal exclusively with Google in the long run. Once this highly complex institution is up and running, there seems to be no legal impediment stemming from the agreement itself that would prevent it from cooperating with other commercial digitizers.
Of course, the point critics never fail to emphasize is that competition between Google and other access providers would prove in practice an empty promise: No other entity is likely to be capable of creating a comparable depository of digitized books, and as Samuelson points out, one that would dare trying would risk in legal threats and lawsuits. And even according to the more optimistic scenario, where several digitizers are simultaneously cooperating with the BRR while competing among themselves (I ignore for the moment complications resulting from the class action status of the agreement), there is no guarantee for better access conditions or lower prices, and for that matter, more respect for fair use.
Google’s monopolistic position extends primarily to infrastructure – its giant store of digitized content, together with smart and high-power logical and logistic commercialization tools. It does not have a monopoly over content, however. Google did no purchase the copyright in all those books. Technically, it is a mere licensee, not even an exclusive one. The real “monopolists” here are, how surprising, the authors guild and the publishers’ association. And as the Statute of Anne festively marks this year its 300th anniversary, one may wonder whether there is anything new under the sun.
Well, of course there is. According to the pessimistic scenario, Google would become a global one-shop monster, the equivalent of a universal publisher with unmatchable position in the market of online literature, in possession of unfettered power to dictate availability, standards and terms of access. Even so, though Google is expected to profit considerably while occupying this position, legally it would operate as the long arm of actual rightholders: It would facilitates for authors and publishers what they cannot do themselves, cutting a sizable coupon for its services, to be sure. If critics’ predictions about the evolvement of the market materialized, and if the agreement led to abusive practices enabled by Google’s dominance, the anti-trust authorities might step in. But even then, it is not so clear that they would find a legal ground to interfere in the settlement.
Should we wake up one day into a reality, in which digital access to much of our literary heritage is dominated by a single giant enterprise, we should also remember that it is the current law which incubated that reality. In my view, it is premature to flatly condemn Google at this point. We still know too little on how this system will function in practice. To me, the most important lesson is that the process of public lawmaking has failed miserably in structuring comparable mechanisms for providing broad access, and at the same time, accommodating rewards for rightholders. It is not surprising that private actors with the necessary foresight and resources rush to fill this gap. What’s the point of lamenting that the contracts they draft lack the checks and balances we would expect to find in public regulation? Prof. Samuelson calls the BRR “a new collecting society”, which implicitly hits the mark: Technically, the term describes the BRR's principal functions and responsibilities. One main difference is, however, that real collecting societies are, for better or for worse, highly regulated entities (in Europe all the more). This is precisely what the BRR is not.