Library Groups Ask Justice Department To Supervise Institutional Pricing for Google Book Database
Say active supervision more vital than additional restructuring of settlement
Norman Oder -- Library Journal, 12/17/2009
- Fairness hearing set for February 18
- No academic authors on Registry's board
- Libraries, as primary consumers of database, should be heard
They also ask for representation of academic authors on the Book Rights Registry and remind the DOJ that libraries would be primary consumers of institutional subscriptions and thus deserved to have their voices heard. A fairness hearing is scheduled for February 18, 2010.
Settlement supported in general
As stated in a previous July 29, 2009 letter, the library groups acknowledge the value of the settlement, with the class action serving as “perhaps the most efficient mechanism” to clear copyrights “in millions of works whose ownership often is obscure,” and that the cost of creating such a repository and Google’s significant lead time advantage mean competition is unlikely.
However, the groups say, “In particular, the absence of competition for the institutional subscription service, combined with the high likely demand among academic libraries for this service, makes libraries particularly vulnerable to profit maximizing pricing.”
Failure to amend settlement
The DOJ, in a Statement of Interest issued in September, suggested that, to avoid monopoly, Google and the plaintiffs (the Authors Guild and Association of American Publishers) should amend the settlement to allow Google’s competitors to gain comparable access to orphan works, those in-copyright but whose rightsholders can’t be found.
But the amended settlement agreement lacks such a mechanism, the library groups point out, noting that, even if it had, “it would not have solved the fundamental problem of Google’s exclusive control of the database.” And even with a competitor, “the competition problem would remain because the [Book Rights] Registry would still control the rights to the ‘orphan works.’”
A solution
The library groups recommend that the court should review the pricing of the institutional subscription to ensure that it meets the economic objectives set forth in the settlement, "to prevent abuse" and "maximize public benefit": “(1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education.”
They add:
Not only should the DOJ urge the court to use its authority to prevent abuse by the parties and to maximize the public benefit of the settlement. Additionally, the United States should carefully monitor implementation of the settlement, including the pricing of the institutional subscription. If the United States concludes that Google, the Registry, or rightsholders are acting in a manner inimical to the public interest, the United States should petition the court to address the situation. We believe that supervision of this sort will be far more effective in preventing abuses of market power than attempting to create industry-wide licensing arrangements that will never be used.
No academic authors
The library groups also express "great disappointment" that the DOJ did not not urge the parties to require representation of academic authors on the Registry board, even though academic authors wrote the vast majority of the books Google will include in its database, and those authors—unlike those in the Authors Guild-—"probably would want the Registry to price the institutional subscription in a manner that maximizes public access rather than profits."
"Going forward, the United States should urge the class representatives to ensure adequate representation of academic authors on the board,” the letter says. “As we stated in our July 29 letter, libraries will be among the primary consumers of the institutional subscription service enabled by the settlement. Accordingly, the Division should pay special attention to the perspectives of libraries on the approval and implementation of the settlement.”
