Google effectively blew off the DOJ's antitrust, copyright and class action objections to the amended Google Book settlement in Google's 77-page brief to the Federal Court adjudicating the settlement.
In a nutshell, Google argued that its settlement is "remarkably creative" (p 28), and "fair, reasonable and adequate" (p 67). It focused on the settlement's benefit to humanity: "the benefits of approval are bounded only by the limits of human creativity and imagination" (p 2). Google also effectively instructed the Judge to accept its redefinitions of copyright, antitrust, and class action law and to reject the DOJ's interpretation of the law and its "cramped view of the court's jurisdiction" (p 10).
The core thrust of Google's argument is political. Google essentially asks the court to make a political, not a legal, decision to:
- Disregard existing antitrust, copyright, and class action law;
- Ignore the opinion, expertise and standing of the DOJ, the United States' Chief Law Enforcement Officer;
- Effectively rewrite copyright law; and
- Permanently enthrone Google as effectively the derivative use caretaker and gatekeeper of millions of "orphan works" which Google illegally copied.
I. Google's argument is fundamentally political.
- Selective Framing: Google selectively framed the approval decision around the benefits to humanity of making libraries' collections available online via Google's search engine. Meanwhile, Google's frame conveniently ignores the settlement's societal harms:
- Degrading creators copyright incentives/protections;
- Permanently lessening online content and distribution competition; and
- Trampling on Congress' constitutional prerogatives to legislate copyright law.
- Political Framing: Google core argument is political: that the Settlement is a "reasonable compromise" (p 2) that enjoys "widespread support" (p 3), that the "Court has the power to approve it" (p 5), and that "courts routinely approve the settlements affording propsective relief" (p 8).
- Normally filings to the court present the best legal arguments and focus on how their legal analysis best upholds the law and the Constitution.
II. Google's attempted re-definition of antitrust law is misleading.
Google attempts to redefine the essence of antitrust by framing: "the basic antitrust question is whether the ASA decreases or increases consumer welfare..." (p 29). No, the true basic questions of the Sherman Act Section 1 & 2 are whether the settlement restrains trade or commerce (reduces competition) or whether it attempts, combines or conspires to monopolize any part of trade or commerce.
- At core Google's attempt to redefine antitrust law as ultimately being only about advancing consumer welfare and not ensuring competition -- would condone copyright illegalities and less competition -- if the settlement somehow enhances consumer welfare more than exists without it.
- Simply, the audacity of Google's legal position is that Google can advance consumer welfare more than competition can, and that any action ultimately is legal if it sufficiently advances consumer welfare.
Google misrepresents itself to the court as a company with no potential to reduce competion or monopolize: "Google is a new entrant and currently has 0% share in any book market" (p 31).
- Importantly, the DOJ determined in 2007 that Google dominates the search advertising and search advertising syndication markets.
- By omitting the relevant fact of Google's dominance in the monetization of online content, and by trying to misdirect the court from observing relevant market facts outside the confines of Google's self-defined settlement, Google is profoundly misrepresenting the broader impact of the settlement.
Google nakedly misleads the court in claiming the settlement involves no exclusivity: "The ASA is explicitly non-exclusionary in every possible aspect" (p 32).
- Google misrepresents the fact that the settlement effectively excludes competitors from searching and other derivative digital uses of Google's unique and ill-gotten orphan works database.
Google speciously argues that nothing in the settlement prevents any "entity from taking the same steps Google did" (p 50).
- Google is nakedly misleading the court in arguing that the settlement is not anticompetitive because any "well funded competitor" (p 50) could illegally copy millions of the world's copyrighted works, get sued by multiple entities around the world, and then negotiate another global settlement and finally emerge with all the same benefits as Google with no prohibitive costs or liabilities.
- Google continues the legal masquerade that:
- If it does not admit publicly that it illegally copied and used millions of copyrighted works; and
- It can orchestrate an omnibus political settlement that allows Google to continue to use its ill-gotten copyrighted portfolio...
- ...that this behavior is somehow normal and acceptable under the law.
In sum, the essence of Google's argument for approval to the Court is that the Settlement is well intentioned, benefits humanity, and does not violate Google's proposed redefinition of copyright, antitrust, and class action law.
- Simply, good intentions trump the law and the ends justify the means.
Google's serial market behavior that pushes the boundaries of the law, combined with Google's apparent belief that the law should apply differently to Google than to others, puts Google on a collision course with Federal, State, and international law enforcement authorities.
