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U. Chicago Law Prof Criticizes Settlement That Could Give Google Monopoly On ‘Orphaned’ Texts

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Tue, May 12, 2009 at 10:06 am

    CHICAGO, IL — University of Chicago law professor Randal Picker raised concerns recently over a court settlement that will grant Google the exclusive right to publish orphaned texts –- texts which remain under copyright, but whose copyright holder can’t be identified or found-a move he felt could give Google a powerful monopoly.

    A series of lawsuits in 2008 claimed that the Google Book Search feature was copyright infringement because it displayed portions of copyrighted texts, including many orphaned texts. In October 2008, Google reached a $125 million settlement that will create an new copyright collective. Part of the agreement allows Google the exclusive rights to reprint orphaned books and articles with copyright-infringement immunity until their authors reclaim them.

    In an April paper, Picker addressed whether Google’s competitors will be unable to create equally comprehensive online libraries without the right to publish orphaned books. Without similar immunity from copyright infringement, other digital libraries, such as the Internet Archive, claim they "would be unable to provide some of these same services due to the uncertain legal issues surrounding orphan books." If this becomes the case, Picker said, Google "would acquire a monopoly on digital information."

    Picker said in an interview with the Maroon that in allowing Google the exclusive ability to publish orphaned works, "the settlement agreement also creates market power." Because other online libraries will be unable to provide these texts, Google will not have to adjust their prices for competition. The resulting high cost of orphaned texts could be especially detrimental to universities that are trying to supply their students with a comprehensive library of scholarly works.

    In his paper, Picker predicted that Google’s "level of direct coordination of prices is unlikely to mimic what would result in competition," making the proposal unlikely to survive legal antitrust attacks.

    However, Picker supports efforts to make orphaned texts available electronically. Although he has objections to the settlement on antitrust grounds, he agreed with Google’s position that making these texts available to the academic community has potential benefits. "Enormous good can come from this [settlement], and we shouldn’t lose sight of that. We just have to get it right," he said.

    Although many of these texts are highly specialized, experts argue that orphaned works "could make up the bulk of collections of some major libraries," according to an April 4th article from the New York Times.

    Picker suggested that, to mitigate antitrust concerns, other commercial firms should be allowed the same rights to orphaned works, and that nonprofit organizations should be allowed to work with orphaned works without liability.

    May 5 was the established deadline to file legal opposition to the court settlement. Picker claimed that, although its implementation will depend upon the court’s opinion, he thinks his ideas for mitigating antitrust concerns are "likely to be cited" among the opposition.

    A group of professors from Harvard Law School, and the Internet Archive, have each independently filed motions to intervene in the case on the grounds of antitrust violations. Several groups, including The Internet Archive and Consumer Watchdog, have also raised concerns about the issue to the U.S. Department of Justice, which so far has not displayed any intention to involve itself in the case.

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