Microsoft Files Brief in Google Book Search Settlement

Microsoft filed a brief on Sept. 8 objecting to the controversial Google Book Search deal, arguing that Google’s settlement with authors and publishers has the potential to violate antitrust laws. 

"The proposed settlement…confers on Google a new monopoly by authorizing Google (and Google alone) to engage in the wholesale commercial exploitation of entire copyrighted books," reads the brief, which was filed in the U.S. District Court for the Southern District of New York. "A class action settlement is the wrong mechanism, this Court is the wrong venue, and monopolization is the wrong means to carry out the worthy goal of digitizing and increasing the accessibility of books."

The volume of complaints surrounding Google Book Search has steadily risen in recent weeks, with a coalition consisting of Microsoft, Yahoo, Amazon and a handful of authors and publishers all stepping forward to ask the Department of Justice to force a revision in the settlement. Other parties, ranging from the American Civil Liberties Union to professors at the University of California, have also joined the Open Book Alliance, started by the non-profit Internet Archive group to challenge the settlement.

The Justice Department has been exploring whether the original settlement between Google, the Author’s Guild and the Association of American Publishers represents a potential antitrust case. The terms of that deal gave Google the right to scan "orphan" books – volumes which are still under copyright, but whose rights-holders cannot be found – for online user and potential sale in exchange for concessions that included creating a nonprofit Book Rights Registry for handling digital rights issues.

Google also agreed to pay authors and publishers some $125 million for that right to scan. However, the settlement also included a provision that Google would be offered the same terms in negotiating for digital book rights as any future competitor, which critics have argued would prevent Microsoft, Yahoo or other entities from offering better deals to authors in the future – a possible antitrust violation.

In the brief, Microsoft argues that its interests are endangered by Google’s settlement:

"Microsoft Corporation has substantial interests in this proceeding," it continues. "It owns Microsoft Press, a large technical publisher, and is a member of both the Publisher Sub-Class and the Author Sub-Class defined in Section 1.142 of the proposed settlement agreement with thousands of copyrighted works covered by its terms."

Redmond also brings its search-engine business into the scope of the discussion:

"[Microsoft] also operates Bing, an Internet search engine that provides users with access to all types of digital information and would be harmed by the anti-competitive effects of the proposed settlement."

In an attempt to bolster its case, Microsoft argues that its own book-digitization project operated "with the clear distinction that Microsoft did not scan and display any copyrighted books without permission of the copyright owner." And despite the demise of that project, ostensibly due to a lack of monetization opportunities, the company claims that it "remains interested in search technology to improve access to digital books, an interest that would be substantially harmed by approval of the proposed settlement."

Microsoft concludes that the whole situation can be resolved "by Congress, not this court." Nonetheless, Judge Denny Chin, reviewing for the court, will hold a fairness hearing on Oct. 7. The Open Book Alliance apparently does not intend on filing an opposition to the court.

In an earlier retort, Google spokesperson Gabriel Stricker told eWEEK on Aug. 21 that Microsoft’s interjection in the case was ironic, given that it came "from a company that abandoned its book digitization effort because it lacked 'commercial intent.'" Google’s chief legal officer, David Drummond, has previously stated that the search-engine giant would be open to adjusting settlement terms in the face of a "compelling argument."