Last week I asked Google's lawyers the following questions and received the following responses, which I have paraphrased:
• Isn't this a tremendous anti-trust problem? Google has essentially set up a huge compulsory licensing system without the legislation that usually makes such systems work. One of the reasons it took a statutory move to create compulsory licensing for musical compositions was that Congress had to explicitly declare such a consortium and the organizations that run it (ASCAP, BMI) exempt from anti-trust laws. In addition, this proposed system excludes many publishers (such as university presses) and many authors (those not in the Authors' Guild). More importantly, this system excludes the other major search engines and the one competitor Google has in the digital book race: the Open Content Alliance. Don't they now have a very strong claim for an anti-trust action?
The Google legal team did not see this agreement as structured in a way to actively exclude competitors from developing a competing service. The agreements with and about publishers, libraries, and the registry were all non-exclusive, as is the habit and tradition of Google’s approach to competition in the Web business. The registry will be started with Google funds, but it will be an idependent non-profit that may deal with the Open Content Alliance and other services without restriction from Google. Generally, Google’s lawyers don’t’ see this service as presenting a “typical anti-trust” problem. There are so many segments to the book market in the world, including real bookstores, online stores such as Amazon.com, and used-book outlets that no one may set prices for books (even out-of-print books) effectively. There is always a competing source – including libraries themselves.
• Isn't this a potential privacy nightmare for libraries? Will Google compile personally identifiable information (via a login to Google Docs or some other service) of terminal users? Will Google collect search and usage data from these library terminals to "improve" searches? Will such data be open for study by the publishers? Scholars? How long will Google retain such data, if it compiles it at all?
The response from Google’s lawyers exhibited an openness to examine this potential problem and an indication that much about the design of the program was yet to be determined as early as November 2008. Google lawyers had not agreed in the settlement to share personal information with publishers, but the company might share aggregate data collected through the service. Although Google had not yet designed the system, the legal department predicted that users would not have to log in to Google to use the public terminals. The legal department assured me that the company would “build in privacy protections” with the guidance and assistance of the library partners.
These answers are helpful and interesting, if a bit limited in scope (but hey, so were my questions). There are many ways to move beyond them and pick them apart. So please go at it in the comments. I will weigh in myself soon enough.
So what do y'all think about Google's explanations?