THE BLOG
12/01/2009 05:12 am ET Updated May 25, 2011

Google Books: Right Goal, Wrong Solution

The first anniversary of the collapse of major U.S. financial institutions has just passed, and in its wake much has been written about the delicate balance between prudent government oversight and free market ideals. Recent attention by the Department of Justice to the Google Book Search case underscores that strong safeguards to protect intellectual property and to prevent unfair competitive practices are equally important to the healthy functioning for the market of access to online information.

Earlier this month, the DOJ filed a Statement of Interest in the Google case, recommending that the court reject the proposed settlement because of "significant legal concerns." In response, Google and its partners requested and received a delay in the case, recognizing that the settlement, as it was originally proposed, is dead. The parties will go back to the drawing board, but these developments highlight the impropriety of allowing Google and its partners to craft a private settlement that purportedly serves the public interest.

Intellectual property protections and checks on anticompetitive business practices have played central roles in our system of law and government since the earliest days of the Republic. Passed in 1890, the Sherman Antitrust Act was spurred by the public harm that resulted from the Standard Oil monopoly's collusion with the nation's railroad operators. The original U.S. Copyright Act predates Sherman by a century, drafted by the Second Congress and signed by George Washington. These statutes have evolved over time, but their intent has remained constant: our copyright laws encourage learning and the pursuit of knowledge by rewarding the fruits of creative labors, and our antitrust provisions guard against unfair business practices, ensuring that the playing field is level so competition can flourish. These legal constructs operate in service of the public good - and should remain in the province of public authorities. Google may intend well, but determining the right way to distribute and protect a nascent public utility rightfully belongs in the realm of Congress, not commerce.

Many parties, including those who vehemently oppose the original settlement in the Google Book Search case, laud the idea of making books searchable, readable and downloadable. The Internet, coupled with search engine technology, has the potential to unlock huge volumes of our shared cultural knowledge, making information accessible regardless of one's geographic location or financial status. However, there are right ways and wrong ways to accomplish this goal. As the DOJ clearly recognized, the proposed settlement in the Google Book Search case was a wrong way, and a dangerous one. Rather than resolving the copyright issues originally at stake, it aggravated them. Adding insult to injury, the proposed settlement would have created a monolithic concentration of market power that raised antitrust alarm bells to even the most casual defender of competitive markets. The proposed settlement would have impacted thousands of copyright holders who are not part of the lawsuit, and it threatened competition, consumer choice, and privacy in virtually every field that the Internet touches.

Google has said it wants to try again - and has vowed to work with the plaintiff publishers to craft a better settlement. If left solely to its own device, this exercise is doomed to fail. Google understandably sees great commercial and intellectual appeal in the mass digitization of books; at the same time, trade publishing has fallen on harder times. Book sales have steadily declined in recent years and publishers are anxious to find new revenue. Any settlement these parties reach will necessarily consider their own commercial gain first, trampling public rights in the process.

The potential damages to consumers extend far beyond the digital book marketplace. Sanctioning monopoly power in online literature would stifle competition in scores of other markets, particularly those dependent on web commerce. The DOJ has raised the alarm, and now it is time for Congress to assume its rightful place in this debate - convening interested voices and arbitrating on behalf of public good. Standard Oil's price fixing conspiracy with the railroads inspired Congress to pass the Sherman Act because they recognized that control over critical transportation and fueling infrastructure could be wielded to impact virtually every aspect of American life. In the modern day, the Internet is the railroad and search technology the coal that powers our cultural, commercial, academic and social existence. Allowing a powerful cartel of commercial actors to possess control over these fundamental elements of networked information promises to create a modern day Standard Oil.

Our laws evolve to accommodate modernity, and the digital migration of books may warrant a revision to our approach to both copyright and competition policy. Commentators on both sides of the Google case have noted that the mass digitization of books may prove to be the most revolutionary advance in the distribution of knowledge since Gutenberg invented the printing press. Google suggests that the worthiness of its pursuit justifies a prompt settlement. But in fact, it is the very enormity of the issue that demands it be deliberated publicly, not haggled over privately. The world of information has changed dramatically since the days of Standard Oil, but not so dramatically that we should discard our civic foundations for the sake of one company's good idea.