Assessing Competition Issues in the Amended Google Book Search Settlement

Google takes products out of beta status slowly, even while it is making substantial improvements in the product. Objectors will see the amended settlement agreement as a mixed bag, with some finding almost nothing in the changes (privacy advocates and those who fear high prices for institutional subscriptions), while others will find their concerns addressed (foreign governments acting, one hopes, with the correct sense of the interests of foreign authors).The amended settlement agreement clearly responds to the concerns raised by the Department of Justice. In waiving the benefits of possible doctrines of antitrust immunity, the ASA solves a timing problem for DOJ. DOJ faced an all-or-nothing quandary: challenge the agreement now or risk the possibility losing the right to challenge it later. The Noerr waiver solves that problem. There may be real benefits to seeing how the pricing provisions play out in actual operating conditions. Don’t shadow box now but fight later if necessary. I could easily see DOJ or Judge Chin reaching that conclusion and choosing to defer consideration of the pricing issues to another day.The orphan works licensing is differently situated. The revised agreement creates a new unclaimed works fiduciary but does so in incomplete fashion. The UWF takes over some of the registry’s responsibilities rather than acting as a true fiduciary for orphan works holders. Such a fiduciary would be situated to license the orphan works to third parties on a going forward basis. That would have been an elegant solution to the competitive issues raised by the current plan to grant a license to the orphan works to Google and only to Google. The revised settlement makes real progress on these issues only to stop short of a visible and attainable real solution.