Randy Picker moves fast. It’s only Monday, but he already has up a twelve-page paper on the amended settlement, Assessing Competition Issues in the Amended Google Book Search Settlement. His focus is on antitrust, and there’s a lot of good stuff in there.
For one thing, sports a very elegant analysis of the new waiver of antitrust immunity on the timing of various parties’ decisions. If the DOJ can wait until pricing problems develop before needing to challenge them in court, some of the concerns can be kicked down the road, and addressed if and when they do develop. Since waiting creates no immunity, we might as well wait to see whether the Consumer Purchase program does a faceplant.
I also found this passage on the algorithm persuasive (i.e. he agrees with me):
There still is this characterization question: should we think of this arrangement as a horizontal arrangement or as a vertical arrangement much more like iTunes? The fact that the authors are acting in unison with Google is what pushes this towards horizontal characterization and nominal antitrust doctrine—think Socony-Vacuum—is quite unfriendly to any horizontal agreement on prices even, perhaps, one that says we are going to agree on competitive prices. That is almost certainly to allow form to trump reality if the ASA actually operates in the manner that it sets out.
And on the key question—the new Unclaimed Works Fiduciary—I loved this paragraph:
Now I feel like Moses: I can see the promised land but apparently I can’t get there. Creating the UWF is a nice way to solve the conflicts problem identified by DOJ. DOJ had expressed a concern that holders of unclaimed works didn’t necessarily have the same interests as those of active rightsholders. The UWF mechanism enables separate representation of those interests. But the settling parties have limited the role of the UWF to merely stepping into the shoes of the registry in some circumstances. They could have broadened the role for the UWF to have the UWF step into the shoes of the rightsholders of unclaimed books instead. Had that been the focus, the UWF would then be an elegant solution to the going forward problem of how to license the orphan works.
This matches my understanding of the UWF’s limited role (about which I will blog in more detail when I get a chance). The new, limited-purpose UWF doesn’t really address the fundamental antitrust issue with the settlement: Google’s use of the class action to obtain exclusive access to unclaimed works. There are also serious issues with the “class action” part of that phrase, so I’m not entirely surprised that the parties didn’t give the UWF those broader powers. But Picker’s analysis makes me wonder whether the amended settlement was drafted with that possibility in mind, only to have one or another of the parties get cold feet and insist on restricting the UWF’s powers.