Google still has 'de facto monopoly' over orphans, experts warn

<p>A change of US law will be required for retailers other than Google to sell any unclaimed digital works covered by the revised settlement announced last weekend, giving Google a &quot;de facto monopoly&quot;, experts have warned.<br /><br />Among other changes, the amended agreement, filed late on Friday evening (13th November), set out provisions for a Court-approved fiduciary, which will represent rightsholders of unclaimed books, act to protect their interests, and license their works to third parties but only &quot;to the extent permitted by law&quot;. </p><p>The move was welcomed this week by the Booksellers Association in the UK, which had called for this concession, among others, to be introduced. But others have issued warnings that the vague terminology leaves Google as the only distributor able to sell to these orphan works under US law as it stands.<br /><br />James Grimmelmann, associate professor at New York Law School, said: &quot;Google would be retaining a de facto monopoly, but sharing some of the profits from it, while keeping itself in the dominant position.&quot; He added: &quot;The settlement, as it&#39;s currently written, means Google would still be the one representing the books out to readers, and taking a substantial cut of the money. What requires legislation is for people to come in and fully compete without Google taking a cut.&quot;<br /><br />Martyn Daniels, Brave New World blogger and president of Value Chain International), said the language used &quot;muddies the waters&quot; for orphan works as the clause was &quot;open to interpretation&quot;. He added: &quot;Who actually owns the licence and rights to licence on unclaimed works? Google appear today to remain the only game in town for the orphan works and will this clear stance on orphans get the backing of the Department of Justice, or be once again found unacceptable?&quot;</p><p>David Wood, legal counsel for the Initiative for a Competitive Online Marketplace, said: &quot;New provisions only give retailers the ability to &#39;resell&#39; access to Google&#39;s scanned copies of books to consumers. It also essentially guarantees that no other commercial entity, either in Europe or elsewhere, will be able either to access or replicate the database that the settlement proposal places under Google&#39;s sole control. Consumers wishing to search for books online will have to use Google or nothing.&quot; He added that Google still got &quot;to keep a significant share of any profits from orphan works and to maintain its grip on online access to orphan works&quot;.</p><p>The Open Book Alliance, which also opposes the deal, said: &quot;Only Congress has the power to give these rights; Google is seeking an exclusive &#39;end run&#39; around Congress&#39; power to set copyright law.&quot; </p><p>Grimmelmann added no legislation of this kind was being considered by Congress currently, and it would require &quot;at least a number of months&quot; for any such law to be passed. Given the current health care reforms, and other subjects being debated in Congress, he added this would not likely take place until &quot;next spring or summer&quot;. </p><p>Writing in his blog on the subject, Grimmelmann said: &quot;The settlement gives [Google] preferential access to this market, while leaving an absolute legal barrier to entry in the way of all competitors. The speculative possibility that Congress might someday act to open up the market to others doesn&rsquo;t create actual competition now.&quot;</p>