Google Book Project Tries to Placate the Critics: Will It Be Enough?
The Copyright Office was soon joined by the Department of Justice (DOJ), which announced that it had initiated an antitrust investigation. In a “Statement of Interest” that it filed in the court proceeding in September 2009, the DOJ pointed to a potential conflict of interest between authors who were members of the Authors Guild and authors whom neither party could identify or locate, even though their books were in the collection. Joining the fray was a group of 33 antitrust law professors who signed a brief arguing that the Original Settlement was pro-competitive because it would make available millions of books that currently have no commercial outlet. (The author of the brief received funding from Google.)
The DOJ expressed concern that the copyright holders of such “orphan works” were likely to have their books commercially exploited, with the profits going to a Registry that did not represent them, later to be distributed to the authors whom the Registry could identify. The DOJ expressed doubt whether the named plaintiffs in this lawsuit could properly represent the authors of these orphan works.
The DOJ also expressed concern about the inclusion of works by foreign authors, and noted aspects of the Original Settlement that had the aura of price-fixing. The DOJ worried that the result of the Original Settlement would be a Google monopoly over the works that it had digitized, since no competitor would likely replicate Google’s work in the face of uncertainty regarding the outcome of any copyright infringement lawsuit that it might face from authors whose works had been copied without permission. The DOJ seemed to favor a legislative solution to the problems associated with the creation of a massive book database, rather than to entrust it to Google alone.
The brief filed by the Government of France notes with pride that French authors have won the Nobel Prize for Literature more often than authors from any other country, and made both philosophical and legal arguments. Two of its legal arguments were that:
