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Justice Dept. Opens Antitrust Inquiry Into Google Books Deal
Posted by
Soulskill
on Wed Apr 29, 2009 07:56 AM
from the real-page-turner dept.
from the real-page-turner dept.
Mad Hamster points out a NY Times report that the US Department of Justice has launched an antitrust inquiry (may require free registration) to take a look at the deal Google has made with book publishers and authors for its Book Search service. Quoting:
"Lawyers for the Justice Department have been in conversations in recent weeks with various groups opposed to the settlement, including the Internet Archive and Consumer Watchdog. More recently, Justice Department lawyers notified the parties to the settlement, including Google, and representatives for the Association of American Publishers and the Authors Guild, that they were looking into various antitrust issues related to the far-reaching agreement. The inquiry does not necessarily mean that the department will oppose the settlement, which is subject to a court review. But it suggests that some of the concerns raised by critics, who say the settlement would unfairly give Google an exclusive license to profit from millions of books, have resonated with the Justice Department."
Update — 4/29 at 14:25 by SS: CNet has new information on the extension Google was seeking in order to contact rightsholders for a decision on whether to join the settlement or opt out. Google had originally asked for 60 days, but a judge has now granted them four more months.
Related Stories
[+]
News: Questions Linger Over Google Book Rights Registry 107 comments
We've discussed the fallout from Google's settlement with the Authors Guild a few times already. Now the issue is made pointed again by a Wall Street Journal editorial claiming that the settlement will ruin a functioning copyright system if it is finally ratified, as expected, in June by a federal court. Reader daretoeatapeach writes: "In the US this will establish a Book Rights Registry where authors can opt-in to 63% of the revenues of each book, the rest going to Google. While previously Amazon had cornered the market on e-books, Google's partnership with Sony will create a serious dent: 500,000 books to Amazon's 250,000. Though Google is currently only releasing the books that are in the public domain, they ultimately plan to sell the 7 million e-books they've scanned (and counting). This raises a lot of questions about the future of publishing: Do we want only one company (e.g. Google) controlling access to information? Should publishers get a cut of the money, at least as long as their book is being scanned? Will broader access to trade journals affect their relationship and reliance on libraries? If, in the future, more authors opt out of the traditional publishing model, when will this hit the 'recession-proof' book industry? And has the publishing industry learned any lessons from MP3s?"
[+]
News: Internet Archive Seeks Same Online Book Rights As Google 67 comments
Miracle Jones writes "Brewster Kahle's Internet Archive has jumped on Google's 'Authors Guild' settlement and asked to be included as a party defendant, claiming that they ought to get the same rights and protections from liability that Google will receive when the settlement is approved by federal court. From the Internet Archive's letter to Judge Denny Chin: 'The Archive's text archive would greatly benefit from the same limitation of potential copyright liability that the proposed settlement provides Google. Without such a limitation, the Archive would be unable to provide some of these same services due to the uncertain legal issues surrounding orphan books.'"
[+]
Your Rights Online: DOJ Nixes Lax Policy, Hardens Antitrust Enforcement 249 comments
eldavojohn writes "A policy from the Bush era seen as a hurdle to the government prosecuting companies under antitrust laws has been withdrawn by Obama's Department of Justice. From the article: 'The DOJ's Antitrust Division has withdrawn a September report that "raised too many hurdles to government antitrust enforcement and favored extreme caution" toward antitrust enforcement action, the DOJ said. The change in policy could mean that the department looks harder at the actions of technology vendors such as Google, Oracle and IBM, as detractors have raised antitrust concerns about all three in recent months.' You may recall that Google has come under some antitrust scrutiny recently and the pressure may have just gotten a little more intense."
[+]
News: Microsoft Blasts Google Book Deal 165 comments
eldavojohn writes "With authors, scholars, the DoJ and publishers ripping apart the Google book deal, it's Microsoft's turn. They're claiming it's frankly an illegal 'joint venture' and not a settlement. According to ZDNet, Microsoft's four complaints against the deal are: 1) Future infringements are covered by the settlement, affecting the exclusive rights of absent class members for the life of their copyrights. 2) 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. 3) 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. 4) The publishers plan to exclude their own works from the deal. You might recall over a year ago Microsoft's own scanning effort died."
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Business is business (Score:2, Insightful)
Google licenses these works for a fee, and gains the right to redistribute.
Other parties don't license the works, and they complain they are shut out of the market.
Didn't Netscape cry foul in the same way? I'd hate for the Internet Archive to suffer the same fate as Netscape.
Re:Business is business (Score:5, Insightful)
Google licenses these works for a fee, and gains the right to redistribute.
Usually, in order to get a license you have to get it from someone with the actual legal right to give it. Although, of course, anything is legal if a court decides so...
Parent
Re:Business is business (Score:4, Interesting)
Congress could easily put the orphaned book deal into law, whereby anyone could declare a book orphaned to a government agency that would look the book up in what's currently being published. If it's not, you would pay a royalty to that agency, who would keep the money in escrow in case the copyright owner comes forward. If and when they do, they could make a deal with you to keep publishing, or politely ask you to stop. Such a law would be a much better deal than a specific settlement between one company and the guilds.
Parent
Re:Business is business (Score:4, Insightful)
Or, in other words, all it takes is one person to decide that they want to override your legal rights and then complain to the appropriate agency to have some faceless bureaucrat to override your legal rights.
In other words, a faceless bureaucrat can override the rights holders legal right to negotiate royalties or to deny the right to reprint outright.
In other words, the rights holder is now forced to live with the fait accompli of the faceless bureaucrat and hope they can come to deal with the person or company that republished his work without his permission.
Such a law would be a travesty, just like this 'settlement'.
Parent
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Um, they have.
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I can't find anyplace any assertion that the so-called rights holders (actually more accurately titled "plaintiffs" in this case) actually hold the rights to every work that google has their hands on. I can't find one to the contrary either, but I usually assume wrongdoing because it's more common than not. Behind every great fortune there is a great crime.
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You aren't looking very hard at all are you? How many times have people explained class actions in this and the other slashdot articles concerning this settlement?
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They've settled with the Authors Guild, a group that has no legal standing to represent anyone other than their members, plus a few others, yet the settlement covers every book published in the US whose copyright owner hasn't opted out.
What is actually happening? (Score:3, Insightful)
Can anyone actually correctly summarize what is going on with this Google book deal, I find it hard to believe that Google is trying to gain exclusive rights over all these unclaimed (copyright wise) books completely and forever for all copies of this book everywhere.
Isn't it really that they just want rights to put up the books that they scanned (and some people that had agreements with them to help scan)? Is there something that would stop people from rescanning those books and posting them up some place else?
Links to clear sources would be best... Where's my Google Security Blanket(TM)!
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Re:What is actually happening? (Score:5, Informative)
No, however an issue is folk like you spouting off without knowing what they are talking about, muddying the waters.
The actual real issue is thus:
Right now, Google has been hit with a class action lawsuit on behalf of pretty much every author ever, because it's a class action, if you are a member of the class you are bound by the settlement terms unless you opt out of the class before the deadline in May.
The current settlement agreement provides Google with a number of things, in return for a number of things from Google. However, the biggest issue worrying people is that Google will receive a license to republish out of print books on demand. The so called "orphan works" which are not yet in public domain but are also no longer being printed and therefore can only be found if you are lucky enough to find one in a library or used book store.
They are (potentially) getting this license because as a class lawsuit, the lawyers running the plaintiff's side of the arguments are empowered to speak for all the members of the class and thus can legally agree to this even if the authors involved aren't actually aware of the settlement. Of course, if you are a member of the class and you think the lawyers are doing a crappy job, since all members of the class have an equal voice in the issue, you could always raise Cain to have your own lawyers replace the ones already doing the work.
What worries everyone is that since this license is granted via settlement through a class action lawsuit, many people feel that it would be impossible for anyone else to get the same license. And unfortunately, the judge in this case has already declined to allow other companies to 'join the defendant' so they can get in on the settlement.
All the rest of the noise and turmoil is bullshit and a tempest in a teapot, since part of the settlement will be you can opt-out of Google's publish on demand system if your works would count as 'orphaned works' and if your books are still published, then Google doesn't get the rights to sell you anything, without your explicit permission.
How this turns out is anyone's guess. It's possible that the settlement could go through, giving Google a fairly large mass of work which is out of publication but not yet in public domain, which in theory only they and the individual authors of those works would have permission to reprint. It's possible the settlement could be re-arranged to allow third parties to 'buy into' the setup, preventing anti-trust issues. Or it's possible that the settlement just gets tossed and we go back to square one.
This sort of highlights the flaws in our current copyright system. Not that this settlement is possible, but that there are actually works out there that would be covered by 'orphaned works' clause of it. The point of copyright was never to be "we give you exclusive rights to making copies of this book for a limited time period, then you remove it from our culture forever by burying it".
Parent
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The point of copyright was never to be "we give you exclusive rights to making copies of this book for a limited time period, then you remove it from our culture forever by burying it".
I ran across this train of thought in another thread, and I disagree with it - there is nothing stopping someone archiving works of art today, and waiting until copyright expires to make them available later on. There is nothing in copyright law, and quite rightly so, that requires copyright holders to ensure that their work is preserved and available for public release and consumption
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Actually it fairly blatantly contradicts your explicit statement that this was some sort of dodgy deal. Regardless of whether the deal goes through or not, the people making the deal have the legal authority and power to make it.
Which, unless you are reading at a fourth grade level, should be obvious to you. Given that, lets just go with the assumption that your idea of 'clearly state' could more easily be defined as "fill with as much FUD and other biased bullshit as possible".
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But you do seem to be very quick to insult and resort to harsh language. Says a lot really.
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Says I've spent a lot of time reading bullshit from folk like you who would rather whinge about life and how evil everything is rather than fix whatever they consider the 'flaw' in the argument.
The 'decisions' made by the legal rights holders aren't being overruled. If you are someone with rights to a work being covered by this settlement, you have numerous options today to ensure your decision is the one being respected. If instead you want to sit there and bitch about how it's not fair that you have to do
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That *is* the issue. If I make a decision to allow my work to go out of print, then that decision should stand until I reverse it myself or I lose the rights over the work. It should not be arbitrarily reversed by a third party.
Copyright law grants copyright holders the ability to control distribution
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Are you even capable of reading the English language? If you have made such a decision, then take the steps necessary to ensure that decision is respected.
You know, I felt it was horribly unreasonable to have to bend over and pick up that quarter the cashier dropped this morning when I was ordering a bagel. I suppose you feel it would have been more appropriate for me to just stand there and bitch loudly all day till she came around the counter and did it herself?
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I don't care about any individual copyright holder that doesn't know about this deal. I don't really care about Google. What I care about is that no-one else can compete with Google in the same market, because they haven't been sued yet.
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The technology to archive works for that long doesn't exist. Sure, it would work for a few billion years, but the expansion of the sun would be a big problem, and if you get around that, the heat death of the universe is pretty much impossible to beat.
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Hey thanks for that, it was pretty clear, but I still am wondering if it was about the specific set of scans that Google made or if it grants Google exclusive rights to the text regardless of the scans which clearly be very bad.
That clarification is really important because clearly blocking all other parties from the book table would be a clear abuse of monopoly position by Google.
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http://www.authorsguild.org/advocacy/articles/settlement-resources.html [authorsguild.org]
from the Authors Guild page:
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It is the whole "opt out" that makes this a bad thing. Google approaches everything with "but you can opt out". When Google does it is is good, when spammers do it, it is bad. Or that seems to be the general idea.
I would like to see "opt in" on everything. Going from the robot.txt that should be an opt-in and not an opt-out to anything else.
"But I won't be able to find webpage XYZ" I hear you moan. Well, if they did not add an opt-in, perhaps they don't WANT to be found.
I do realize that it is way too late
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The argument for opt-in/opt-out in this particular case basically boils down to whose side of the coin you want to favor when it comes to preserving access to works. If you believe in the Disney model where it's perfectly alright to remove your works from the public, till they become public domain, either because you don't want people to see them any more or to ensure the next time you publish the work (and thus renew the copyright because you remastered it and thus created a 'new' work) you'll have a high
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The argument for opt-in/opt-out in this particular case basically boils down to whose side of the coin you want to favor when it comes to preserving access to works. If you believe in the Disney model where it's perfectly alright to remove your works from the public, till they become public domain, either because you don't want people to see them any more or to ensure the next time you publish the work (and thus renew the copyright because you remastered it and thus created a 'new' work) you'll have a high demand, then you want an opt-in system.
If you believe in the public good argument which points out the only reason you were given copyrights in the first place was so you could make money from your works in a set amount of time before they became public domain, then the entire concept of "orphaned works" is blasphemous from the start. Remember, the idea of copyright isn't "You control the idea" it's "You control the means to reproduction so everyone has to pay you to get a hold of the idea". In this case, you are for opt-out because while it's still against your beliefs that a book can be purposefully kept out of publication, it's at least the option that allows you to republish those works where the author didn't care enough either way to indicate their desire.
I think though, reading the above, you know my bias on the issue. To me, anything that is copyrighted can be considered a 'derivative work' based on the entire culture you were brought up in. You would not have been able to make it without that, and thus you shouldn't have sole right to control it forever. However, these days, that is what is going on, since many things that have been copyrighted will never physically last long enough to fall into public domain. How many movies and shows from the 1900's to the 1950's have been lost because the film they were printed on crumbled into dust a long time ago. How many books have been lost because they are no longer published and the pulp they were printed on has disintegrated by now.
By the time these works become public domain, how many of them will even be understandable given the inevitable drift in language?
A large number of new or only moderately popular authors can only get limited publication runs of their materials and then have to lobby the publisher if they want another run. I'm not aware of the specifics of this case, but if those works count as orphaned during the typical 1-5 years it takes for new authors to get a second set of books produced, this settlement may make it impossible for new authors to make a living with writing unless they opt out. I think in that case, an opt-in requirement would be
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Let's ignore for a moment what I said here [slashdot.org]. Because what you've said is interesting on it's own.
Lets say that this did cover our new budding artist's work. And lets say they didn't opt-out of the plan, for some reason.
What really would be the harm in having Google as your publisher rather than your 'big name' publisher? Google will be paying you 60% of the profits, what do you think your publisher is going pay? The primary difference would be Google wouldn't be pimping your book out to the New York Times. O
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What's the music implications?
What's the software implications?
What's the movie implications?
What's the art implications?
We keep treating each of these copyright areas like it's its own little playground, and the Big Effect results are going to clash hard soon.
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True - but the dodgy part is this: It is not clear that organization that is representing itself as the legal representatives of the class is in fact legally qualified to do so.
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clear sources [googlebooksettlement.com]
Or as clear as it gets, anyway. What it looks like is that an association of five or six publishers got together and sued google, who is putting over USD$15M into a fund to pay out authors who claim their piece of a licensing deal for their content brokered without their consent. It is extremely similar to the way that royalties are "paid" on music, and is probably the first step in organizing an RIAA/MPAA-like association of major book publishers which will be used, as the RIAA and MPAA are, t
...to profit from millions of books... (Score:2, Interesting)
Inter-library loans are great and all, but what about when no library anywhere has a copy remaining on hand? Or, more practically, when no library in your particular state/country/jurisdiction has a copy which you are allowed to check out? Very dog-in-a-manger, yeesh.
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And more bullshit from you:
If you deliberately allowed your work to go out of publication then you can opt out, either now, as part of the class action, or later when the system is setup by contacting the non-profit registry that will be setup as part of the settlement and indicating you don't want your works republished till it becomes public domain, at which point it's not up to you.
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Here's a simple fact of life grasshopper, class actions aren't about being fair to everyone in the world. They are about trying to settle issues that affect a whole group of people without having to deal with each and every one of them while still being fair to the majority of them.
If you care enough about your 'rights' on this, then either put forth the effort to opt out now and be excluded from the class altogether, or put forth the effort to ensure your wishes are respected once the settlement. If you do
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If Google wishes to archive them and make them available, they should wait for the copyrights to expire.
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As the rights holder, I should also have the right to not distribute.
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Or, more practically, when no library in your particular state/country/jurisdiction has a copy which you are allowed to check out? Very dog-in-a-manger, yeesh.
Is there anyone who still believes global copyright is good for humanity?
That raises a question (Score:2, Interesting)
How the heck do you change a case against you into an exclusive agreement in your favor?
When you've committed a tort, it's generally you the defendant that has to be making concessions..
It seems like the exclusivity provisions should be stricken from the settlement, and it should just be a matter of authors offering google the privileges and duties they want in exchange for fair compensation.
The option should be left open for the publishers to negotiate similar deals with other services in the future
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The authors are receiving compensation. Especially those being reprinted, since Google will be providing 60% of the profit to them.
I love libraries, but they are obsolete (Score:2)
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The sooner I can download what ever text I want, the better. I hope the governement doesnt stand in the way.
I wouldn't worry about the government standing in your way, I would worry about the author.
Re:I love libraries, but they are obsolete (Score:4, Insightful)
And I'm asking these questions in sincerity. It seems that, for the most part, Slashdotters have a different way of handling the issues the arise from the medias differently. It's almost as if writers get treated with kids gloves in comparison to their musician and film producer peers. If you'd replace "writers guild" with "RIAA" and/or "MPAA" you'd go from people talking over the issue with a somewhat level head to one where we'd hear howls for blood and unflattering references to their sexual preference. But the truth is that these issues are the same, all of them have the same problems and all of them have the same legal protections.
Parent
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Respect is a two-way street.
Perhaps the author's guild doesn't get the kind of hatred that RIAA and MPAA get because it doesn't deserve it as much.
The Settlement explained (Score:5, Informative)
If you guys really want to understand all of this stuff, as I did, I suggest you listen to my interview with Professor James Grimmelmann, who is writing a long, long, long brief examining all the issues for the court about this settlement in an amicus brief from the New York Law School.
He went to Harvard and Yale, interned for the Creative Commons, and used to be a programmer at Microsoft.
It's a lengthy interview, but we cover all the important stuff.
http://www.fictioncircus.com/news.php?id=356&mode=one [fictioncircus.com]
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Only lawyers can say things like this with a straight face:
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a long, long, long brief
it takes a robust legal system to make a phrase like that make sense.
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The English language is literally a riot.
Questioning the whole idea of "antitrust" (Score:5, Insightful)
Re:Questioning the whole idea of "antitrust" (Score:4, Insightful)
Yet barriers to entry, whether regulatory or otherwise, prevent entry into the market for a small competitor (and therefore there is no place for organic growth into a large competitor). Since we cannot ever have an ideal free market (in the economic sense), we will always have barriers to entry, even if all regulatory barriers were dropped.
Therefore, by default, a trust is bad, because it limits the potential for competition.
I'd like to point out to you that even the Austrian school of economic thought recognizes that corrections must be made for monopolies -- because even if they do not "abuse" their status (which they will, according to most all economic theory), they do limit competition by the very nature of the market. Trusts and monopolies ARE inherently bad, because they limit the ability of the economy to efficiently allocate resources.
Parent
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Actually, they are not distant issues.
The Sherman Anti-Trust Act was ostensibly passed to protect consumers from the problems inherent in a market free of competition.
Google seems to be in the position to have a monopoly in the book indexing market. Goldman Sachs, Bank of America, and others hold an oligopolistic position on a panoply financial instruments. In both cases, competition would be/would have been beneficial for the consumer, but only in the former do we see any motion to investigate.