Washington
– The Department of Justice announced late Friday that it liked the
idea of a vibrant marketplace for the electronic distribution of in
print, out of print and so-called orphaned books. The DOJ also
supported the creation of the independent “Book Rights Registry.”
Officials expressed some concerns, but said it believed Google and its
proposed partners could tweak the deal to meet those concerns.
The
Computer & Communications Industry Association is a longtime
advocate for fair, balanced competition within the tech sector as that
leads to more innovation and more choices for consumers. CCIA
appreciates that it is appropriate for the DOJ to review a deal of this
size. Recognizing its importance, CCIA has also discussed several
issues with parties to the settlement and others who may be impacted by
it so we could best understand the issues raised, and reached our own
conclusion.
The following statement can be attributed to CCIA President & CEO Ed Black:
"This
is a major agreement, and it is entirely appropriate for DOJ to look at
a deal of this magnitude. They are doing their job scrutinizing the
competition aspects of this settlement.
"We
believe this deal enhances competition among books and paves the way
for competition in the online book marketplace, and helps disseminate
information and knowledge in the best traditions of our industry. The
DOJ makes a variety of arguments about class action procedure and
antitrust. Some antitrust concerns outlined by the DOJ are overstated,
and in any event can certainly be addressed. These should not be an
obstacle to the court approving the legal settlement.
“Once
this settlement is approved it will provide the legal certainty that
will attract competitors to Google. What has kept would-be competitors
away has been the fear of putting in the tedious work of scanning and
indexing books – only to be blocked later by lengthy, and possibly
frivolous infringement lawsuits. Google is the first company to meet
the lawsuits head on. For that it deserves praise. If there is a
villain in this ‘monopoly conspiracy’ plot – it’s our own copyright
laws, and our inability to reasonably adjust them to fit the Internet
and digital era.
“A
deeper read of the terms of this agreement, our copyright laws and the
history of companies and non-profits trying to create online book
searches lead me to only one conclusion. This settlement deal paves the
way legally for a variety of companies and non-profits to jump into the
growing market of online book scanning, indexing and sales, to the
benefit of the parties involved and Americans. The rest of the world
will temporarily remain hobbled in their ability to advance in this
area.
“We
believe that to the extent that the DOJ has raised legitimate legal
concerns, they can be addressed and this legal settlement can be
allowed to pave the way for an unprecedented leap in access to
knowledge. This settlement empowers readers not just to be able to find
exactly what they need, but to lower barriers like the price of that
book.
“The
DOJ wisely says ‘if the settlement is ultimately approved, data
provided should be available in multiple, standard, open formats
supported by a wide variety of different applications, devices, and
screens. Once these books are digitized, the format in which they are
made available should not be a bottleneck for innovation.’
"DOJ
urges data to be made available in open standards, supported by a wide
variety of applications. CCIA wholeheartedly endorses DOJ's view on
this. As described in CCIA's brief, CCIA shares the Department's
concern that file formats should not be a bottleneck for innovation, or
for competition. Google has already made a commitment to open
standards, and CCIA applauds that commitment."
“The
settlement boosts competition for online book sales and even among the
books themselves. Some critics have expressed concerns regarding
Google’s license to use so-called orphan works, books for which the
rightsholder can’t be found. These books have been out of circulation
for some time and in many cases its because there was not a demand for
them. The Google deal gets them back into circulation, competing
alongside other books.
“Allegations
of ‘monopoly’ imply that orphaned works represent a vast mine of
untapped economic potential. But Authors Guild President Roy Blount has
noted orphaned works by definition provided little commercial appeal
for print publishers. There is no evidence that Google’s license to use
books that no one wants will create a product with which no one can
compete. These arguments belong in the humor section."
“Finally,
CCIA notes with approval the fact that the DOJ seems to have abandoned
the dubious argument, raised by the Copyright Office in a Congressional
hearing, that the Settlement raised concerns with international treaty
obligations. "
Some background:
-
The Justice Department's filing today serves to aid Judge Chin's
consideration of whether the parties' settlement satisfies Federal Rule
of Civil Procedure 23.
-
The October 7 fairness hearing is to ensure that the settlement is
"fair, reasonable, and adequate" to the class plaintiffs, as required
by the 2005 Class Action Fairness Act amendments to FRCP 23. The
determination of whether the settlement satisfies Rule 23 standards
will be made by the Judge Chin, not the Department of Justice. That
determination will follow the fairness hearing.
-
A judge may approve or reject a settlement. Contrary to suggestions by
certain parties, neither Judge Chin nor the Department of Justice have
the authority to "line-edit" a settlement by private parties.
Nevertheless, a judge rejecting a settlement may identify the reasons
for doing so, which may include objections to specific terms of the
settlement.
About CCIA:
CCIA
is an international, nonprofit association of computer and
communications industry firms, representing a broad cross section of
the industry. CCIA is dedicated to preserving full, fair and open
competition throughout our industry. Our members employ more than
600,000 workers and generate annual revenues in excess of $200 billion.
