Answers to questions raised in Authors Guild v. Google Inc.

In my previous post, I had raised questions regarding the decision in Authors Guild v. Google Inc. and their larger ramifications. In this post I try to give answers.

The first question which I had raised was that of what would constitute as “fair” to authors and their various guilds to allow for the open publication of their work through Google Books as different authors would have different preferences for writing and publishing. To this question there is a proposal: There is no doubt that the terms and conditions of any formal contract between any specific author or guild and Google would be governed by the ordinary law of contract. Therefore, depending upon the facts and circumstances of the case, “fair” could easily be analysed just as it was in the present case. However, what could be an option is to allow for the free uploading by an author of his/her book. There are only two drawbacks to this option which I can see. Firstly, quality could suffer and secondly, in case of books already published, there would also be a requirement of negotiation between the author and the publisher. I am aware of atleast one such instance wherein this was the method followed to allow the uploading of a book by Google. (The Future of The Internet and How to Stop It by Jonathan Zittrain, incidently, a proponent of network neutrality. I found a Google Books copy quite by accident, to be honest). What is important however, is that ONLY THE AUTHOR should be allowed to use such a service. Under no circumstance must a publisher be allowed to upload books, thus effectively preventing another Authors Guild scenario and at the same time satisfying the proponents of network neutrality. After all, even network neutrality proponents have to agree that copyrights must be respected where they exist, and restriction of innovation is hardly an issue when it comes to literature.

The second question which was raised was regarding status of free websites on the internet under competition law and whether their policies could be considered as anti – competitive in the relevant market. I humbly submit that I am of the opinion that they could not be considered as anti – competitive. I say so because there does not exist, to quote from our own Competition Act, 2002, any agreement between an “enterprise or association of enterprises or person or association of persons” among or within these websites. The common practice among most such websites is to allow the free uploading of the author’s article or book by the author himself according to his preference, and therefore, the author has no intention of entering into any form of agreement or association with any other individual with a presence on the particular website. The only agreement which the individual enters into is an express or implied agreement with the website on signing up as a member of the respective website regarding the privacy of his personal information. Thus, there existng no agreement, the question of whether or not it is “anti – competitive” shall not arise.

The final question which was raised was whether Google had become the controller, obsessed with domination in all spheres of internet and intranet technology?? In light of recent events, I feel the answer is yes. However, I will discuss this issue in detail in my next post.

In conclusion, it is acknowledged that many readers may find the above mentioned proposal to be unfeasible, and in all probability may even be able to point out flaws in it. But it must be noted that the proposal is mainly hypothetical, and in the end, it is up to the parties to decide the solution amongst themselves. The proposal is simply a suggestion to try and ensure the protection of the interests of all.