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Microsoft buster Gary Reback goes after Google on books

Gary Reback, a leading antitrust attorney from Silicon Valley who went after Microsoft in the late 1990s, has a new target in sight: Google.

He’s working to prevent a deal between Google and publishers and authors over the rights to digital titles. But his push, along with many authors and competitors including Microsoft, Yahoo, and Amazon, goes way beyond the bookshelf.

We had coffee Thursday morning during his visit to Washington and talked about his bigger concern: that Google could leverage its popular search platform to favor its own book titles. And beyond books, Reback thinks the company could do the same with its growing roster of Web applications -- maps, voice services, news, navigation, music and video.

“It turns out this will have enormous ramifications for the future of libraries, the future of books, the future of Silicon Valley and the future of Web commerce,” Reback said. He is now being funded by his coalition, the Open Book Alliance, which includes Amazon and Microsoft.

Google says its search is based on an algorithm and doesn't favor one application over another. But it does feature some applications, including its Google maps, at the top of some search results pages.

"Our primary goal as a search engine is to give users the information that they are looking for and as accurately and as quickly as possible," said Gabriel Stricker, a spokesman for Google. "Sometimes that means that our own properties could come up first, such as in case that you cited, maps, and that happens when it gives them a quick answer that benefits users. But apart from those situations, these are organic search results that are determined algorithmically and change all the time."

Rebak's argument sounds a lot like those he made against Microsoft in the late 1990s, except then the technology platform was the desktop operating system and the problem was that Microsoft appeared to be using its dominance in software to edge out competing applications like the internet browser. Now Reback’s warning that the shear size and power of Google’s search business – which makes up about seven out of every ten queries – gives it an unfair advantage and could lead it to block competing applications from search queries.

Google says new competitors continue to challenge its dominance in the search industry and points to the fast interest in Microsoft’s Bing search engine.

Reback disagrees.

“It is increasingly bundling things, by virtue of their organic search results and advertising search results, they get to decide who’s at the top,” Reback said.

Google’s competitors, including AT&T and Microsoft, have expressed the same criticism. Telecom and cable carriers face a new regulation at the Federal Communications Commission that would prevent them from blocking or slowing content on Internet networks. Because Washington has no clear role in regulating the fastest-growing portion of the Web – content applications such as YouTube and Facebook – companies and economists have questioned whether those firms need to be more closely scrutinized.

Reback says he thinks the search engine is a network in and of itself on the Web, with many applications attached to it. He argues that Google’s conduct should be evaluated in the same way as telecom and cable networks and punished by the FCC under net neutrality rules if the company unfairly advantages its own services over others.

Google has responded that proposed net neutrality rules are intended for Internet access providers, who provide the physical infrastructure for communications networks. Web companies creating content aren’t regulated by the FCC and the key to competition lies at the point of access onto networks, the company says.

But he says most of his problems with the Google Books deal are antitrust-related and how the Justice Department finally comments on a fairness hearing about the books settlement will “be a test” for an administration that has promised to crack down on anti-competitive practices in the high-tech industry.

The U.S. District Court for Southern New York has given Google and book authors and publishers until Monday, Nov. 9, to renegotiate the terms of their settlement. The Justice Department’s antitrust division said it would not approve the plan because of anticompetitive concerns. The court is conducting a fairness proceeding on the settlement. Several critics – including John Steinbeck’s heirs – have protested the settlement for its far-reaching effects as readers are expected to gradually begin reading their books online instead of on paper.

Specifically, Reback proposes that:
· The settlement must not grant Google an exclusive set of rights (de facto or otherwise) or result in any one entity gaining control over access to and distribution of the world's largest digital database of books.
· Authors and other rights holders must retain meaningful rights and the ability to determine the use of their works that have been scanned by Google.
· The settlement must result in the creation of a true digital library that grants all researchers and users, commercial and non-commercial, full access that guarantees the ability to innovate on the knowledge it contains.
· All rights holders impacted by the settlement must have a meaningful ability to receive notice, understand its terms and opt out.

photo: Gary Reback

By Cecilia Kang  |  November 6, 2009; 4:35 PM ET
Categories:  Antitrust , DOJ , FCC , Google , Net Neutrality  
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Next: A new Google books settlement goes to judge tonight

Comments

Again, Cecilia Kang mischaracterizes the onerous "network neutrality" regulation for which Google -- her advertiser -- is lobbying, while at the same time giving a tepid reception to Mr. Reback's very accurate concerns about Google. Gary is correct: Google is already dangerously influential, as demonstrated by the bias in this blog. Go Gary!

Posted by: squirma | November 7, 2009 12:24 PM | Report abuse

As Professor James Boyle points out,
(http:// FT.com / Comment / Opinion - A copyright black hole swallows our culture) Google's project to scan in books is a win-win proposition for both authors and readers. Publishers, on the other hand, whose control of the market has previously acted to the detriment of both authors and readers, would find that control weakened and are not surprisingly less happy. The give-away, which tells us in whose interests Mr Reback is working (other than, of course, his own), is contained in the innocuous phrase «Authors and other rights holders», who «must retain meaningful rights and the ability to determine the use of their works that have been scanned by Google». Authors, yes, but why «other rights holders» ? Why should authors and readers continue to pay a tax to publishers, and other such «rights holders», for a service - distribution - which is now performed by others ? If publishers which to promote the books they have orphaned and print new copies, then they are certainly entitled to compensation for their labours (which they will receive when these books are purchased), but to allow them to tax us all for out-of-print works that they have abandoned is absurd. An author of such a work should and does have the option to opt in or opt out of Google's project ; publishers should not be allowed to interfere in the matter....

Henri

Posted by: mhenriday | November 9, 2009 9:28 AM | Report abuse

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