Inside Google

Google’s effort to bring millions of books and some of the world’s greatest university collections online is running into some surprising opposition from librarians, academics and consumer advocates.

Last week, a group of authors that included John Steinbeck’s son and daughter-in-law, musician Arlo Guthrie, and university professors from around the country persuaded a federal judge to delay approval of a court settlement that would have given the Internet giant unprecedented rights to digitize and sell out-of-print books whose copyright status is murky.

"It is clear to us that the settlement, if approved, will shape the future of reading, research, writing and publication practices for decades to come," Pamela Samuelson, the co-director for the Berkeley Center for Law and Technology, wrote in a letter to U.S. District Judge Denny Chin.

Chin ended up granting a four-month reprieve, rescheduling a hearing on the fairness of the settlement from June 11 to Oct. 7.

The agreement is meant to resolve a 31/2-year legal fight between Google and the Authors Guild and the Association of American Publishers over Google Book Search, a project to digitize the collections of major university libraries, including Harvard, Oxford and Stanford, that began in September 2005.

On the defense

"Google’s mission is to organize the world’s information and make it universally accessible and useful. Today, together with the authors, publishers, and libraries, we have been able to make a great leap in this endeavor," said Sergey Brin, co-founder and president of technology at Google, when the settlement was announced in October. "While this agreement is a real win-win for all of us, the real victors are all the readers. The tremendous wealth of knowledge that lies within the books of the world will now be at their fingertips."

The authors and publishers claimed the project, which was intended to eventually include every book ever published, was a flagrant violation of copyright law.

The former courtroom adversaries say they are not opposed to an extension, which will give authors and publishers who oppose the settlement time to study the 134-page document and send comments to the judge. They say the settlement represents a reasonable resolution to their dispute, and that it will benefit the public by dramatically expanding access to books, while fairly compensating creators. Authors who had their books scanned without permission could get a token payment from Google.

In addition, authors and publishers will get a cut of any future profit that Google makes from their work, thanks to the creation of a new organization that will distribute the money and resolve disputes.

"This gives writers a degree of control that no writer has ever enjoyed before," said Paul Aiken, executive director of the Authors Guild.

But opponents of the settlement, who include librarians, law professors, antitrust experts, copyright specialists, authors and digital activists, say the far-reaching agreement grants Google unique privileges that could turn the Mountain View company into both the world’s largest library and its biggest book store.

Specific objections to the settlement range from sweeping intellectual arguments about the public’s right to information from multiple sources to practical concerns about how the deal will work. However, the main issue that critics are focused on is their contention that the agreement will give Google a de facto monopoly on the digital versions of so-called "orphan works," out-of-print books whose copyright holders can’t easily be found. These works, which are estimated to number in the tens of millions, could make the search giant the most powerful information broker on the planet, able to determine what books the public gets to read and at what cost.

Opponents of the deal agree the public would benefit from access to digital works but they would like to see Congress create a level playing field rather than having Google be the sole gatekeeper.

"Google will walk away from the settlement agreement with a huge competitive advantage," said Randal C. Picker, a law professor at the University of Chicago. Picker said Google’s ability to set prices for digital works as a result of the deal raises antitrust concerns and could mean consumers pay more.

The Department of Justice has opened an inquiry into the settlement, according to three people who have spoken with investigators. Such inquiries don’t necessarily turn into formal investigations, though some advocates are pressing the government to get involved.

"We’d like to have them intervene and delay the settlement until the antitrust issues get fixed," said John Simpson of Consumer Watchdog, a nonprofit group that contacted the Justice Department about the settlement a month ago.

Aiken said the concerns about the settlement are overblown and in some cases inaccurate. To say that Google will have a monopoly on out-of-print books is like saying that "Google is cornering the market on something that is unmarketable," Aiken said.

"Monopoly is a big word and people are throwing it around a lot," said Alexander Macgillivray, the Google lawyer who negotiated the agreement. He said the deal is not creating a barrier to competition, but removing barriers that were created by the convoluted U.S. copyright system.

Value of books

At the heart of the controversy is the value of books that are no longer sold except occasionally in used-book stores and whose legal ownership is unclear. The vast majority of written work exists in this limbo in libraries around the world. Of the more than 7 million books Google has scanned since December 2004, only 1 million books were in the public domain, whose copyright has expired, and 1 million were still in copyright and also in print. The remaining 5 million books appear to be in copyright but out of print, and Google continues to scan more books each day.

It is these so-called orphan books that was the focus of the lawsuit brought by the authors and publishers. Google didn’t need permission to scan books in the public domain, and publishers gave Google permission to scan books that were in print.

But the ownership of the copyright of out-of-print books was often difficult to determine. Google argued that it had authority to scan these books without explicit permission under a legal concept known as "fair use."

The group of authors and publishers accused Google of deliberately violating copyright law. "Our position was: The hell you say. Of such disagreements, lawsuits are made," Roy Blount, president of the Authors Guild, wrote in an Oct. 28, 2008, letter to the organization’s 8,000 members that recounted the origin of the lawsuit and announced the terms of its settlement.

The agreement gives Google the right to sell individual digital books, as well as access to its database and advertising linked to books. Google can also make other commercial uses of the books.

In return, Google will pay 63 percent of the revenues that it earns from the books to a Books Rights Registry that will distribute the money to authors and publishers. Google will also contribute $34.5 million to establish the registry and will put a minimum of $45 million into a separate settlement fund that will pay copyright holders at least $60 for each book it scanned.

Critics contend that the settlement gives Google a broad license to digitize and market out-of-print works without fear of any liability except from authors who chose to opt out of the agreement. "As the only legal place where all books can be searched, Google gets enormous market power," author Cory Doctorow wrote on the Boing Boing blog. "The leverage they attain over publishing and authors through this settlement is incalculable."

James Gleick, an author who helped negotiate the settlement on behalf of the Authors Guild, said the most important thing is that the settlement stopped Google from copying books without permission. But, he acknowledged, "Google still ends up with a great deal of power, and a special position in the marketplace because they were so aggressive in making this database."

Gail Knight Steinbeck, chair of the Creative Property Rights Alliance and daughter-in-law of writer John Steinbeck, said the settlement is rewarding Google for bad behavior. "I love Google, don’t get me wrong," she said. "But this leaves a bad taste in my mouth."

Opt-out date

Authors have until Sept. 4 to opt out of the settlement and preserve their right to sue Google. But few consider that a realistic alternative. "This settlement is being foisted on us," said Siva Vaidhyanathan, a media scholar at the University of Virginia and an author who is not a member of the Authors Guild.

Vaidhyanathan said for practical purposes authors can neither opt out nor choose to remove their books from the database, which is another option presented by Google. "That would mean our works would disappear entirely from the only meaningful and searchable resource," he said. "Google’s market power makes this an offer we can’t refuse."

Corey Williams, a spokeswoman for the American Library Association, which claims to be the oldest and largest library association in the world, said librarians are not only afraid that Google will be the only organization with a comprehensive database, but that Google will be able to chose which books go into the database, in effect censoring the information available to library patrons. "There’s a concern that if it’s a monopoly and others can’t get into the game, libraries won’t have an alternate product to chose from," Williams said.

The agreement allows Google to provide free access to its database through a single terminal at a public library. But with libraries already facing lines out the door for computers, Williams said, a single terminal might not be adequate. As important as access is privacy, she added. "Google will know what pages you read and how many seconds you spent on a page," she said.

"It’s important to remember we haven’t actually designed the product yet," said Macgillivray, the Google lawyer. "But as we do that of course we are going to keep privacy in mind."

Brewster Kahle, founder of the Open Content Alliance, said there is an alternative to giving Google an exclusive license. The alliance is working with the Internet Archive, a nonprofit library cofounded by Kahle, to scan both in-print and out-of-print books, which could then be lent out. Kahle said Congress could pass a law that would allow for-profit uses of out-of-print books.

Macgillivray said Google would support such legislation, which came close to passing in the last Congress. "We have been for the last five years trying to get good orphan-work legislation that would allow this type of thing to happen not just for us but for everyone," he said.

Contact the author Elise Ackerman at: [email protected] or 408-271-3774.

TIMELINE OF THE DISPUTE

Source: Authors Guild