GBS: They Write Letters

ACRL, ALA, and ARL have written a new letter to the Department of Justice reiterating their concerns about pricing of the Institutional Subscription. It describes the database as an “essential facility” (a term of art in antitrust law, although one that may not have much legal significance any longer), and argues:

Given these marketplace realities, the Library Associations believe that the most effective way to prevent the Registry and Google from abusing the control they will have over the essential research facility enabled by the settlement would be for the court to regulate the parties’ conduct under the settlement. Specifically, when requested, the court should review the pricing of the institutional subscription to ensure that it meets the economic objectives set forth in the settlement, i.e., “(1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education.” Settlement Agreement at 4.1(a)(i).

Rule 23 and the settlement agreement already provide the court with the authority to conduct this oversight. However, the United States should advise the court that it has this authority, and urge the court to use this authority to the extent necessary to prevent abuse by the parties and to maximize the public benefit of the settlement. Additionally, the United States should carefully monitor implementation of the settlement, including the pricing of the institutional subscription. If the United States concludes that Google, the Registry, or rightsholders are acting in a manner inimical to the public interest, the United States should petition the court to address the situation. We believe that supervision of this sort will be far more effective in preventing abuses of market power than attempting to create industry-wide licensing arrangements that will never be used.

The letter also reiterates the libraries’ belief that academic authors need to be represented on the Registry Board.

The library associations again confirm that governance and autonomy of the BRR and its designated Unclaimed (i.e.orphan)Works Fiduciary (UWF) remains a critical issue. I suggested in my early filing (for Ian Franckenstein, heir of late author Kay Boyle) that the Court should appoint the initial BRR directors, and no more than half of the directors designated by the Publishers Assn or the Authors Guild, and that annual directors elections be ensured therafter. Unless the BRR is established with bona fide, de facto and dejure autonomy from the start, the court will be drawn into a pernicious process of detailed Registry and UWF supervision, without end. Do these library assns really think Judge Chin or any federal judge will agree to be on call for pricing disputes over Google’s charges for sales of individual or collections of e-books? Only if the Registry and the UWF are firmly structured as autonomous, with fair minimum governance rules ensuring that independence, will the whole GBS deal work, the way BMI and ASCAP have worked for years in the music business.