I'm not surprised by the news that the Justice Department has recommended that the proposed Google settlement be rejected as written. Given the complex issues involved, more work needs to be done to achieve a fair settlement for all parties involved, one that does not lock in an unfair advantage for Google over its competitors. Clearly, this is just the latest example of litigation playing a critical role in shaping the industry's business models.
Recall that in 2001, just 8 years ago, the ABA (American Booksellers Association) settled its antitrust case against Barnes & Noble and Borders for $4.7 million. The 1994 lawsuit and its accompanying evidence exposed many discriminatory deals made by the two bookstore chains with the major publishers. Many commentators at the time noted that the deals helped to financially feed the 1990's superstore expansion, while at the same time crippling the ability of independent bookstores to compete on the same playing field. By the time the lawsuit impacted the industry enough for publishers to offer fairer terms to independent bookstores in the late 90's, the damage had been done. The industry was left with the 2 chains as the increasingly dominant booksellers.
At about the same time, the internet and Google emerged to become the next new challenge for the industry. In this latest case, Google's behavior in digitizing entire library collections, initially without regard to copyright issues, was the core of the problem. While the publishers and the AAP sued to stop the library program, a negotiated settlement became the vehicle to resolve the dispute.
As the industry continues to struggle with digitization in general, the almost arcane focus in the settlement on "orphan works", those out of print or rare works without a clear and identified rights holder currently, can be seen as a microcosm of a larger dispute that will eventually be settled in the courts. Since Google's strategy could be characterized as digitize first, then negotiate, they were able to attain the competitive advantage early on, and have leveraged that to steer the proposed settlement. Their major argument is that digitization is in the public good, giving wide access to these rare works. Of course, that access is through Google's book search. And parties wanting to claim their orphan works and opt out of Google must do so actively, the onus is on them to navigate through the structures defined in the proposal. It will be interesting to see how this all turns out in the end.
But I think this particular legal action is the precursor to another one. It is my guess that the future dispute will be whether the major publishers' individual and confidential agreements with Google, Amazon, etc, violate Robinson Patman, or the Sherman Act, and give those companies an unfair advantage over their competitors. Whether it is about ebook terms, book search terms, or terms about any income derived from scanning and digitization of works, more litigation is the only certainty.