Google Book Search settlement gives Google a virtual monopoly over literature

by Cory Doctorow

Writing on O'Reilly Radar, preeminent legal scholar Pamela Samuelson cuts through the distractions associated with the Google Book Search/Authors Guild settlement and goes right to the heart of the matter: Google, in acceding to the Authors Guild's requests, have attained a legal near-monopoly on searching and distributing the majority of books ever published.

The Authors Guild -- which represents a measly 8000 writers -- brought a class action against Google on behalf of all literary copyright holders, even the authors of the millions of "orphan works" whose rightsholders can't be located. Once that class was certified, whatever deal Google struck with the class became binding on every work of literature ever produced. The odds are that this feat won't ever be repeated, which means that Google is the only company in the world that will have a clean, legal way of offering all these books in search results.

The Authors Guild and the American Association of Publishers (who took part in the settlement) totally missed the real risk of Google Book Search: they were worried about some notional income from advertising that they might miss out on. But the real risk is that Google could end up as the sole source of ultimate power in book discovery, distribution and sales. As the only legal place where all books can be searched, Google gets enormous market power: the structure of their search algorithm can make bestsellers or banish books to obscurity. The leverage they attain over publishing and authors through this settlement is incalculable.

I like Google. I worry about the privacy implications of some of their technology, and I wish they had more spine when it came to censoring search results in China, but I think they make incredibly awesome search tools and every person I know who works at Google is a class-A mensch and a certified smart person (a rare combination).

But no one, not Google, not Santa Claus, should have this kind of leverage over the entire world of literature. It's abominable. No one benefits when markets consolidate into a single monopoly gatekeeper -- not even the gatekeeper, who is apt to lose its edge without competition to keep it sharp.

The publishers I spoke to about this were incredibly smug about it. Because the settlement gives them the power to keep new releases out of Google, they feel like they can use this to keep the company honest.

This is wrong.

New releases are the majority of the publishers' business, but they're not the majority of the market for books -- and they're only successful because of all the context created by the entire history of literature. If the publishers offer a sweetheart deal on searching new results to Yahoo, but can't give Yahoo access to the orphan works and other catalog items to which Google alone has easy legal access, Yahoo's search tool will never compete with Google's. To understand why, imagine if Yahoo tried to compete with Google by offering a search engine that only indexed the last 30 days' worth of web-pages: it's true that most of the stuff I read on the web was written in the past 30 days, but the 40-50% of stuff I that wasn't is often enormously important to me. In that world, I would have to flick constantly between searching Yahoo and Google to make sure I wasn't missing stuff -- and very quickly, I'd just default to Google.

By design or by accident, Google got the most reactionary elements in publishing to anoint Google the Eternal God-Emperor of Literature. Thanks a lot, Authors Guild -- with friends like you, who needs piracy?

http://www.boingboing.net/2009/04/17/google-book-search-s-1.html