GBS Blogging: LIbraries’ Amicus Brief Filed

The American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries today filed an amicus brief with the District Court. We’ve known this was coming for a while; these groups were the first to announce that they’d be filing an amicus brief. The timing is interesting, since they’re choosing not to wait until the new September deadline. (It makes sense, since you have to figure that their brief, like everyone else’s, was in or near the final stages of editing when the court announced the delay.)

The brief embraces a theory I first saw expounded by Brett Frischmann: that Google’s database of scans will constitute an “essential facility” under antitrust law. Antitrust scholars debate whether essential facilities still has legs. To the extent that it does, however, the argument runs that since the settlement will create a product that libraries will have no choice but to purchase from Google, Google should be obligated not to impose unfair terms on them. The brief also gives a careful airing to some of the privacy and censorship concerns that librarians are particularly attuned to.

Perhaps the most interesting thing about the brief is its recommendation to the court:

The concerns discussed above all flow from the concentration of power over the two related essential facilities — the ISD and the block of copyrights managed by the Registry. Fortunately, the Settlement that created these essential facilities also contains a means of addressing the possible abuses of the control the Registry and Google possess over them. Specifically, the Settlement provides that this Court “shall retain jurisdiction over the interpretation and implementation of the Settlement Agreement.” Thus, the parties acknowledge this Court’s authority to regulate their conduct under the Settlement. The Library Associations urge the Court to exercise this authority vigorously to ensure the broadest possible public benefit from the services the Settlement enables.

The brief then goes on to discuss specific mechanisms for implementing this judicial oversight, such as “Any library or other possible institutional subscriber must have the ability to request this Court to review the pricing of an institutional subscription.” The model here is the ASCAP and BMI consent decrees, which let customers petition a supervising court for review if ASCAP or BMI overstep their bounds. Provided the court is willing to exercise this degree of oversight, the brief comes down in favor of the settlement.

Jonathan Band, frequent amicus, drafted the brief for the library associations.