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More Objections from Europe, and Amazon Of Course

September 2, 2009
By Michael Cader

Yesterday a variety of Dutch publishers filed objections to the Google Books settlement agreement with the Federal District Court, in similar letters from Leopold/Ploegsma; Querido; SWP; Athenaeum – Polak & Van Gennep; and Nijgh & Van Ditmar, citing many of the same objections as other European publishers that we reported on yesterday. Holland’s Unieboek and Spectrum departed from that form letter and sent a different list of objections, including an assertion that “the division of any income between publishers, authors and translators is currently still unclear to us.”

New objections were also filed by Czernin Verlag, Sweden’s Liber, and the American Law Institute and ALI-ABA Continuing Professional Education.

Attracting the most attention, though, is the lengthy objection from Amazon.com. (They are a class member by virtue of having published DVD On Demand: A CustomFlix Guide to Profitably Distributing Your Film with Inventory-Free Fulfillment by Darren Giles.) Amazon writes: “It is unfair to authors, publishers, and others whose works would be the subject of a compulsory license for the life of the copyright in favor of Google and the newly created Book Rights Registry.  It is anticompetitive and violates antitrust laws because it provides Google an effective monopoly in the scanning and exploitation of millions of works whose copyright holders cannot be located or choose not to involve themselves in this class action.  It also creates a cartel of authors and publishers–the Books Rights Registry–operating with virtually no restrictions on its actions, with the potential to raise book prices and reduce output to the detriment of consumers and new authors or publishers who would compete with the cartel members.  Indeed, the agreement is even arguably unlawful on its face because it constitutes price fixing by horizontal competitors–namely, the Rightsholders, who are agreeing collectively on a mechanism for setting the highest possible prices to be charged for their works.  Finally, the proposed settlement improperly seeks to stretch the boundary of this Court’s power beyond its lawful limits, using the class action mechanism embodied in Rule 23 of the Federal Rules of Civil Procedure to create a massive and complex business arrangement of perpetual duration among class members, Google and the Registry.”

What’s clear throughout the filing is that Amazon fears the creation of a competitor with what they see as overwhelming power: “The Proposed Settlement risks harming:
* competition between copyright holders for individual consumer sales through
collusive price restraints;
* competition among electronic distributors of books or book databases and among
search engine providers through an exclusive dealing arrangement with Google–an
injury to competition that damages not only consumers and Google’s competitors but also the proposed Registry’s constituent Rightsholders; and,
* potentially, competition between existing authors or publishers and future authors or publishers through the creation of an unfettered cartel controlled by insiders who could exclude outsiders.”
Full Amazon filing

Filed Under: eNews, Free

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