Press Release

It’s Not Just Microsoft That’s Balking At Google’s Book Plans


Sat, Apr 4, 2009 at 9:41 am

    Earlier this week, Google’s public relations team sent around to reporters a story from Wired suggesting that Microsoft was behind
    the opposition to its sweeping settlement with book publishers and
    authors over its book scanning project. I covered a focal point of the
    opposition to the agreement, the concerns over Google’s virtually
    exclusive license to millions of so-called orphan books, in Saturday’s Times.

    There’s no question that Microsoft has made it a mission to cause
    trouble for Google in Washington. And the Wired article noted that
    Microsoft is helping to finance research on the books settlement at the
    Institute for Information Law and Policy at New York Law School.

    That said, plenty of others besides Microsoft are concerned about
    the settlement. The issues were raised most visibly by Robert Darnton,
    the director of the Harvard University library system, in a lengthy essay
    in the New York Review of Books in February. For those interested in
    more details, Professor Darnton’s article is worth a read, as are some
    of the responses, which include a defense of the agreement by Paul Courant, dean of libraries at the University of Michigan.

    Others who have publicly expressed concerns include prominent and
    independent intellectual property and antitrust experts, including
    Pamela Samuelson, a law professor at the University of California at
    Berkeley and co-director of the Berkeley Center for Law and Technology,
    and Jane Ginsburg, a professor at Columbia Law School, which recently
    held an all-day conference where the settlement was debated. At the
    conference, Randall Picker, a professor at the University of Chicago
    Law School, said he saw potential antitrust problems with the
    settlement. His slides are available here.

    Also at the conference, Marybeth Peters, the United States Register
    of Copyrights, called the agreement “a compulsory license for the
    benefit of one company.” More coverage of the Columbia debate is
    available on the LibraryLawBlog here and here.

    Librarians, represented by the American Library Association, the
    Association of Research Libraries and the Association of College and
    Research Libraries, have raised a different set of issues. In a joint
    amicus brief, they plan to voice a range of concerns, from the cost of
    library subscriptions for Google’s book service, to what they say are a
    lack of guarantees that Google will not monitor the reading habits of
    library patrons. Alexander Macgillivray, the lead lawyer representing
    Google in negotiations, said Google “would be mindful of privacy” in
    designing its library products.

    The dilemma for many of the critics is that virtually all agree that
    the settlement does a lot of good, and they don’t necessarily want it
    struck down. Google’s book scanning project will bring new life to
    millions of out-of-print books, making them available at libraries
    across the country, and potentially providing a new source of revenue
    for authors and publishers, as my colleague Motoko Rich described earlier this year.

    Even James Grimmelmann of New York Law School’s Institute for
    Information Law and Policy, one of the most vocal critics of the
    agreement, wants the settlement to be approved. In an amicus brief,
    however, he will ask the court to slow down the approval process and
    solicit advice from the Justice Department and the Federal Trade
    Commission, and will say that it should appoint someone to represent
    the interests of orphan works. (Prof. Grimmelmann, as well as
    Microsoft, insist that Microsoft’s funding of the institute’s research
    on the book settlement doesn’t influence its conclusions. Prof.
    Grimmelman first detailed his concerns in November, months before Microsoft began backing the institute.)

    Representing orphan works, and the public’s interest in that vast
    swath of books, is precisely what a group of lawyers led by Professor
    Charles Nesson of Harvard Law School are hoping to do, with a petition
    to intervene in the case that they plan to file next week.

    Google, as well as the Author’s Guild and the Association of
    American Publishers, have strongly defended the agreement. Google
    describes its terms and benefits here.

    And in a letter sent last week, Consumer Watchdog, a public interest
    group in Southern California, has asked the Justice Department to
    intervene in the case to “bring about changes that will truly serve the
    public interest.”

    Mr. Macgillivray, who listened to critics — as well as supporters —
    for hours at the Columbia conference, said he wasn’t terribly surprised
    that the complex 134-page agreement had sparked a lot of concern.

    “This is a deal that was negotiated with various parties that don’t
    typically get along,” he said. “I don’t think it is perfect from the
    perspective of any of the people who negotiated it. It is not
    surprising that other people had issues with it.” He later added: “I do
    think it is a tremendous improvement from where we are today.”

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