More on the Google settlement

Chris Castle, Is Google's culture grab unstoppable? The Register, December 31, 2008.  Excerpt:

Google dealt itself a powerful piece of the future in the proposed settlement of the "Google Books" case his year.

The plaintiffs, the Authors Guild and the Association of American Publishers, permitted Google pay itself to build a proprietary technology infrastructure for a "Book Rights Registry". This effectively creates a single purpose author's society, but one that grants licenses to one user - Google. While nominally "non exclusive", there's little incentive for competitors - a formidable position. Let's have a look at how Google is set to own the Digital Book....

The $125m buys Google - and only Google - permission not just to scan books for indexing purposes, but also to expand Book Search further. As the EFF noted, "if Google can strike a settlement with a large slice of the aggrieved copyright owners, then it solves the copyright problem for itself, while leaving it as a barrier to entry for [Google's] competitors."

The British Booksellers Association...agreed....

If a competitor tried building a competing book registry by negotiating licenses for in-copyright works, that competitor would have to bear the startup costs—and the cost of licensing. If the competitor is rewarded for respecting authors' rights by obtaining favorable terms, that advantage can be taken away by Google. Why? Because one of Google's goodies from its dominant position in the settlement negotiation is "most favored nations" price protection.

The registry is contractually required to offer Google any better terms it would give to anyone using any data or resources that Google provides the registry, or that is of the type that Google provides....

[PS:  Here omitting a discussion of the potential but ineffective Google competitors:  Microsoft, Open Content Alliance, and Europeana.]

So what might a better policy look like?

The plaintiffs got it half right - our business needs a registry. But that registry ought to be independent, and opt-in. If the Google class action settlement is approved, US courts will essentially create the opposite - an opt-out registry controlled by a dominant player with "most favoured nation" price protection....