GBS, according to Amazon

When I first read the settlement agreement between Google, the AAP and the Author's Guild, I immediately thought: "Wow. Jeff Bezos must be freaking out!" Because it is obvious that the settlement, as written, sets up a bookselling operation of unprecedented proportions. It also does so in a way that makes it hard if not impossible for any other company to compete in certain areas, particularly in relation to works that are out of print but not out of copyright.

Amazon has responded to the proposed settlement with a document for the court. (The document for Amazon was authored by David Nimmer, known for "Nimmer on Copyright", the primary text on the topic of US copyright -- and which sells for over $2,000. When it comes to "big guns" it's hard to get any bigger.) The document makes four major points relating to the settlement. I will paraphrase them here, but if you have an interest in what Amazon has to say you must read the document yourself, because my analysis undoubtedly reflects my non-expert reading of it.

1. The settlement should be rejected because it makes changes to copyright law that should be decided by Congress, not a lawsuit.


2. The settlement should be rejected because the Book Rights Registry that it creates is a cartel of rights holders, and violates anti-trust law.


3. The settlement must be rejected because its expropriation of orphan works violates the copyright act.


4. The settlement must be rejected because it would release Google from liability of future actions.

All of these seem like good arguments to me, but I am especially taken by the fourth one. The Amazon document explains in some detail that class action here is being used to allow future actions that are not part of the complaint.

"A class action settlement can only extinguish claims that arise from the same factual predicate as the class claims.... Future claims for future conduct cannot be released by a settlement agreement because they are not part of the same factual predicate as the purported claims." p. 35

What this says, in my interpretation, is that Google is being taken to court by the AAP and AG because it has, in the past, scanned and OCR'd books that are in copyright without asking permission of the rights holders. Yet, the settlement addresses actions that Google has not yet taken, such as the sale of institutional subscriptions, consumer sales of access to books, and a variety of possible revenue models such as print on demand. This is not redress for violation of rights but a kind of blanket agreement that gives Google rights over the materials for future developments.

"The sale of books or subscriptions to a database of scanned works is conduct in which Google has not yet engaged and, because of criminal sanctions, likely would never engage without a clear license to do so." p. 39

Nimmer's analysis seems to be that this is not appropriate in a lawsuit, and especially one in which members of the class are giving up future rights that cannot even be enumerated. The hypothetical example reads:

"... let us imagine that Google has already scanned Lonesome Dove and included it in the Google Books Program, that Technology X is invented in 2016, and that Google decides in 2020 to inaugurate widescale expoitation of books via that new technology including Lonesome Dove. To the extent that author Larry McMurtry objects to that exploitation in 2021 (in the same way that previous litigation contested the scope of his grant of books rights to his publisher in Lonesome Dove at the dawn of the age of audio books), a dispute may develop between author and publisher. The Settlement Agreement goes out of its way to immunize Google from any liability for copyright infringement under those circumstances." p. 39 footnote 29

I cannot confirm nor dispute this analysis, but there is something very frightening about giving up (or assigning, depending on how you see it) rights for an indefinite future when we have no idea what that future will bring. The Amazon comments have interpreted the settlement as having overly expansive concessions to Google that could have unintended consequences in the future.