Amazon files Google objection with US court
02.09.09 Philip Jones reprting in The Bookseller

Amazon.com has formerly registered its objection to the Google Settlement with the US court that will preside over the Fairness Hearing next month.
In a 50-page legal document, filed yesterday (1st September), Amazon said the agreement was "unfair" to other rights holders, gave Google "an effective monopoly" over scanned in works, and would create "a cartel of authors and publishers". It also questioned the legitimacy of the "class action" and warned the court that it was being asked "to exercise powers that it does not have" stating that the agreement "restrains competition in ways that ought not be sanctioned by this court".

Amazon signaled last month that it would object to the deal and just last week the internet retailer sought the court's permission to appoint prominent copyright lawyer David Nimmer to represent it. In the amicus brief, Amazon concluded that the the agreement was "even arguably unlawful" and that the settlement "must therefore be rejected". It also gave notice that it intended to appear at the fairness hearing scheduled to be held on 7th October. Amazon has joined a number of parties in objecting to the settlement, including the German government, in the run-up to the deadline of 4th September, and its statement will be seen as one of the most important objections so far registered with the court.

Amazon stated: "The settlement proposed by the parties to this case should not be approved. It is unfair to authors, publishers, and others whose works would be the subject of a compulsory license for the life of the copyright in favor of Google and the newly created Book Rights Registry. It is anticompetitive and violates antitrust laws because it provides Google an effective monopoly in the scanning and exploitation of millions of works whose copyright holders cannot be located or choose not to involve themselves in this class action."
It added: "It also creates a cartel of authors and publishers—the Books Rights Registry—operating with virtually no restrictions on its actions, with the potential to raise book prices and reduce output to the detriment of consumers and new authors or publishers who would compete with the cartel members. Indeed, the agreement is even arguably unlawful on its face because it constitutes price fixing by horizontal competitors—namely, the Rightsholders, who are agreeing collectively on a mechanism for setting the highest possible prices to be charged for their works."
Amazon said it had only scanned those books for which it could obtain permission to do so from the copyright holder. Amazon's scanning project has to date resulted in the lawful scanning of over 1 million English-language works and 3 million books in total.

Amazon said that it recognised the "surface appeal of the proposed settlement", and "has long supported efforts to pass copyright reform legislation that would make it easier for booksellers and the public to gain access to these books". But it said the task of reform had in the past been performed by the United States Congress. It stated: "Class actions, though a common vehicle to challenge the infringement made possible by new technologies, have never until this case been used to set out nationwide the rules and regulations by which use of those new technologies would be determined to be lawful or unlawful." It added: "Class actions can resolve disputes between parties and can clarify the law for others, but they cannot make changes to the rules in a way that applies evenhandedly to the entire universe of copyright holders and potential users of the new technologies."