On October 7, the judge handling the Google Books case set a November 9 limit for Google and the Association of American Publishers and the Author’s Guild to rewrite its previous settlement to appease complaints. The rewrite was motivated by a September filing by the Department of Justice making it abundantly clear that the settlement, which also allows Google to scan and provide millions of out-of-print books, would probably not pass regulatory muster. In particular, DOJ argued that large numbers of authors who hold copyrights, specifically those that can’t be located, have not been adequately represented by the authors’ groups. Furthermore, the agency has persisting concerns that Google’s pricing policies and its exclusive right to orphan books extending well into the future raise anti-competitive issues.
Sergey Brin, Google’s co-founder, argued in a New York Times op-ed last week that the settlement will not be anti-competitive in the realm of out-of-print works, since there are no other entities providing the service. While the settlement allows for other entities to scan out-of-print books, Google’s exclusive rights to orphan books means that any potential competitor in that realm would face a lawsuit and potential penalties.
Google’s logic–that without them, certain books would not presently be made available to the public–is not sufficient to justify a de facto monopoly in digitized orphan books for years to come. Instead of creating an arrangement that benefits consumers but stifles future competition, any deal should ensure that a vibrant market emerges as an alternative to a single supplier.
And even with non-exclusive rights, Google and the publishers still lack an incentive to try their best to find missing authors. Despite the creation of a Books Rights Registry, a non-profit that will search for orphan book creators, Registry members are positioned to capture all revenue from orphan books if their authors are not found. Thus, federal regulators will need to be convinced that Google and its partners are making a good-faith effort to track down the creators of orphan works.
Perhaps the best way to accomplish this end is for Google to establish a force of orphan book “bounty hunters.” In a book’s metadata, Google could indicate whether a certain in-copyright work has an unlocated author. It could then offer a monetary or other type of reward to the public if a “bounty hunter” tracks down and contacts an orphan author. In this way, Google could harness the knowledge of scholars, readers, and experts in a specific subject area to find authors that are particularly tricky to locate.
While it would be up to Google and its partners to determine the appropriate reward, competition for a prize should lead to a better shot at finding these authors and would better align the incentives that could make the deal more palatable. In any case, Google’s best tool in getting it’s book deal through should lie in harnessing the creativity and use of competitive markets that led to its success.
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