The DOJ and FTC have filed a joint statement of interest in respect of the proposed Google Books settlement. It’s noteworthy for a couple of things.
First, they agreed a joint response. Given relations between the FTC and DOJ in recent years, that’s already an achievement. I met Tom Barnett’s chief of staff for an informal chat last September, and he said that even if there were a change in administration, he did not anticipate a fundamental change in enforcement policy, given that the DOJ staff largely agreed with the then enforcement policy. In light of the comments from Christine Varney and Jon Leibowitz in recent months – repeated again at Fordham last week – and in light of the joint filing in Google Books, it looks as though the chief of staff’s views were more optimistic than realistic.
Second, the filing gives strong support in its opening paragraphs to the service that Google is trying to create – albeit balanced with an extensive analysis of the legal shortcomings of the proposal as it currently stands:
The Proposed Settlement has the potential to breathe life into millions of works that are now effectively off limits to the public. By allowing users to search the text of millions of books at no cost, the Proposed Settlement would open the door to new research opportunities. Users with print disabilities would also benefit from the accessibility elements of the Proposed Settlement, and, if the Proposed Settlement were approved, full text access to tens of millions of books would be provided through institutional subscriptions. Finally, the creation of an independent, transparently-operated Book Rights Registry (the “Registry”) that would serve to clarify the copyright status and copyright ownership of out-of-print works would be a welcome development.
I think the competition concerns about the proposed settlement are fairly clear: the settlement risks providing Google with a privileged position in respect of the digitising and distribution of books, a position which a second or third mover could not replicate because of the characteristics of the class action settlement procedure. (And Google could benefit from this, whether or not it was its intention to seek out a privileged position.)
At the same time, the potential benefits of the system are as vast as the potential coverage. For the music industry, the celestial jukebox is quickly becoming a reality – with services such as Rhapsody, Spotify and SimplifyMedia. Google could do the same for all books that have ever existed, provided one print copy still exists anywhere in the world.
The implications of this for society are impossible to comprehend. We can only grasp at some of the possibilities.
To take just one very small example, when I was preparing for the fellowship, I started doing some research into the history of copyright, and found some interesting references to Birrell’s Seven Lectures on the Law and History of Copyright in Books (a book long out of copyright and out of print). I duly tracked down a second hand edition; it’s sitting on my shelf now. It will probably stay there, because once I arrived and started thinking about Google Books, I did what I should have done in the first place. I searched Google: Birrell’s book is available: I’ve downloaded it (for free), saved it in my DevonThink database where it now lives with other related materials, searchable, cross-referenceable and quotable.