The other issue that seemed to weigh heavily on the court was that of anti-trust. Even the government objected on this one. The settlement pertained only to Google, in effect granting them a monopoly. We believe the argument to be specious. It applied only to Google because only Google was willing to invest the needed funds in this wonderful project to expand the world's knowledge. If the court is concerned that authors' and publishers' groups won't give similar rights to the next firm that digitizes these millions of books, it could have demanded the settlement be amended to say everyone is entitled to the same terms. The real problem is no one else wants to do this. Complainant Microsoft, no stranger to anti-trust-like practices, attempted a similar project a few years ago but bailed out, concluding there was not enough money in it. It might be nice if these others stepped up to the plate to compete with Google, but no one has. This is like denying a company that has developed a life-saving medicine the right to sell it because they have a monopoly. Damn the consequences! Of course, if that company, or in this instance Google, abuses this monopoly power, then our government can act to correct the problem. Ask John D. Rockefeller.

 

Ultimately, the Judge concluded the settlement was not "fair, adequate, and reasonable." He indicated, however, that it might pass muster if converted to an "opt-in" rather than an "opt-out" settlement. Of course, this brings us back to the "orphan" problem that led Google to proceed as it did in the first place. Finding those 40 great-grandchildren (and you better find 40, not 39), none of whom realizes they own a copyright, and getting them to opt in, is impossible. This is "reasonable?"

 

There is one other option the court recommended. That would be for Congress to pass legislation dealing with "orphan books." Of course, Congress has already had plenty of time to so act and has done nothing. Don't hold your breath. Congress had no problem dealing with a copyright issue a few years back when it added 20 more years to the length of copyrights. That was to prevent the Disney Company's exclusive rights to Mickey Mouse from expiring. This is the sort of issue that concerns Congress. However, with a bevy of heavyweight interests aligned against Google, don't look for Congress to take action over such irrelevancies as the public interest. Disparate factions in Washington may disagree on cutting spending vs. raising taxes, more government vs. less, guns vs. butter, but in the battle between special interests and the public interest, you can expect all sides will be united. Public interests don't buy seats at $1,000-a-plate fundraisers.

 

All of this is terribly ironic when one looks at the purpose of copyright law. It was not intended to restrict access to writing nor even to make writers rich. It protects writers financially to encourage them to write, which is encouraged because it makes more material available to the public. Now, in what may be the most important book copyright case ever, copyright law has been used to restrict public access to knowledge despite providing no meaningful financial incentive for writers. The Executive Branch of government offered no help, it having intervened on behalf of the objectors on anti-trust grounds. Evidently they believe that no supplier is better than one. Congress has only shown an interest in copyrights when it serves someone's special interest. And, the courts are filled with legalese but not common sense. They see the trees, but they can't see a forest.