The Google Book Settlement "makes a mockery" of the Constitution, and should be opposed- so says Marybeth Peters, Register of Copyrights.  Paul Misener from Amazon says Google will have a monopoly and "exclusive license".  And Professor Randal C. Picker says "imagine if a company came before Congress to ask for a deal like this- it would be inconceivable".

As a former counsel for the House Judiciary Committee, I'm used to pretty harsh rhetoric, but even I was a little shocked with the Register's strong language.  Ultimately though, I have to agree that this deal certainly is an end-run around copyright law and will effectively give Google an exclusive license over all orphan works.

This deal gives Google the right to copy, distribute, and sell books which still have copyright protection but for which the owner can't be found.  These are commonly known as "orphan" works.  However, Article I, Section 8 of the Constitution gives to authors exclusive rights to their works.  In other words, people who want to use those works must get permission from the author first.  It doesn't say "except for orphan works, or books written on the 4th Sunday of April in a leap year".  This deal turns that basic legal foundation on its head by allowing Google to capitalize on the use of orphan works without permission.  Ultimately, Congress will have to find a resolution to the orphan works problem, but this settlement undercuts more than a century of U.S. jurisprudence.

But the deal goes beyond just orphan works. In fact, all literary works are included in the deal unless the rights holder- known or unknown- opts out.  Which leads to the point Mr. Misener made during his testimony.  This is an exclusive license.  Google makes a big deal about authors or rights holders being able to "opt out" and make other deals.  However, as Mr. Misener effectively explained, orphan works can't opt out because the rights holder can't be found.  Clearly this gives Google a major advantage over any other competitor. 

Today the Department of Justice is expected to file its concerns with the Court reviewing the proposed settlement agreement.  No doubt they will focus on the anti-trust issues and how the settlement could impact competition and consumers.  But, it is hard to imagine that the court will be able to accept the settlement without changes given the mounting number of red flags being raised.  Yes, there needs to be flexibility in the law to deal with rapid changes in technology.  However, is it worth the risk to competition, copyrights, consumer access, and privacy to allow private parties to negotiate around the law in a deal so big it implicates nearly all of us?  Even EFF is opposed to the deal. Serious Red Flags!

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