That was one of the fears raised in 2009 by the Department of Justice when it concluded that the agreement probably violated antitrust law and could decrease competition among U.S. publishers and drive up prices for consumers.
The deal, the judge said, gives Google “a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission.”
He noted that the case was not about full access to copyrighted works or the sale of them, because Google did not scan the books to make them available for purchase, but he said the deal still would let Google sell full access to copyrighted works that it otherwise would have no right to exploit. The litigation focused on the use of an indexing and search tool.
The judge said Congress ultimately should decide who should be entrusted with guardianship over orphan books and under what terms, rather than the issue being resolved by private, self-interested parties.
He said Congress also could address the concerns of the international community of authors and publishers. He called it significant that foreign authors, publishers, and even nations were saying the agreement violates international law. France and Germany had objected to the deal, along with authors and publishers in Austria, Belgium, India, Israel, Italy, Japan, New Zealand, Spain, Sweden, Switzerland, and the United Kingdom.
Department of Justice spokeswoman Gina Talamona said in a statement that the government was pleased with the ruling. The settlement, she said, “exceeded the scope of the underlying lawsuit on which it was based and created concerns regarding antitrust, class certification, and copyright issues.”
The president of the Authors Guild, an advocate for writers’ interests in copyright protection and other issues, said the organization planned to talk with publishers and Google “with the hope that we can arrive at a settlement within the court’s parameters that makes sense for all parties.”
Guild President Scott Turow said the online library was “an idea whose time has come.”
“Readers want access to these unavailable works, and authors need every market they can get,” he said. “There has to be a way to make this happen. It’s a top priority for the Authors Guild.”
John Sargent, chief executive officer at Macmillan Publishers Ltd., noted in a statement on behalf of publisher plaintiffs that the judge had invited the parties to request approval of a revised deal if they can reach one. He said the publishers were prepared to modify the deal and work to overcome the judge’s objections.
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