Inside Google

Google’s recent and far-flung attempt to digitize the world’s "orphan" books, or out-of-print tomes that remain under copyright but whose rights-holders cannot be found, may soon hit a roadblock in the form of the U.S. Department of Justice, at least if a consumer group gets its wish.

John Simpson, a consumer advocate for Consumer Watchdog, a nonprofit consumer advocacy organization, wrote a letter to U.S. Attorney General Eric Holder asking the government to intervene in Google’s recent settlement with The Authors Guild and the Association of American Publishers (AAP).

That settlement over Google’s digital book-scanning, Simpson wrote, affects the publishing industry too sweepingly to have been closed without any sort of government review.

"Because the settlement was negotiated between the parties in a class action suit, there has been little opportunity to represent the interests of consumers," Simpson explained. "This deal furthers the relatively narrow agenda of Google, The Authors Guild and the Association of American Publishers."

The terms of the settlement create a nonprofit Book Rights Registry to handle digital rights issues. It includes a "most favored nation clause" guaranteeing Google the same terms as any future competitor, such as Yahoo or Microsoft, which might attempt to negotiate for rights.

"It is inappropriate for the resolution of a class action lawsuit to effectively create an ‘anti-compete’ clause," Simpson said, "which precludes smaller competitors from entering a market."

Neither does the group think that Google’s plan for orphan works is acceptable.

"The danger of using such works is that a rights holder will emerge after the book has been exploited and demand substantial infringement penalties," the letter continues. "The proposed settlement protects Google from such potentially damaging exposure, but provides no protection for others. This effectively is a barrier for competitors to enter the digital book business."

In a posting on the Google Books site, the company said that the orphan books program will give authors and publishers a higher degree of granular control. "When this agreement is approved, every out-of-print book that we digitize will become available online for preview and purchase, unless its author or publisher chooses to ‘turn off’ that title," the site notes. "We believe it will be a tremendous boon to the publishing industry to enable authors and publishers to earn money from volumes they might have thought were gone forever from the marketplace."

Nonetheless, organizations ranging from the American Library Association to intellectual property experts have raised concerns over the settlement.

Google has been making some aggressive moves in the digitized book space. On March 19, Google and Sony announced that Google would make its free public-domain eBooks available on the Sony Reader, effectively increasing the size of Sony’s eLibrary by 600,000 books.

It was the first time that Google had made its scanned books, downloadable in PDF format, available for an eReader in ePub format.  Google is also facing another legal tussle over a trademark lawsuit by Rescuecom Corp, over ads linked
to keyword searches.  A U.S. appeals court ruled on April 3 that Google should continue to defend itself against the computer repair company, which alleged in the original suit that Google had recommended a competitor to attract
customers to their site by using Rescuecom’s trademark as a keyword.  Google countered that its use of Rescuecom’s trademark with regard to the competitor was an internal one, and thus exempt from any commerce-infringement argument.

The appeals court seemed to agree, stating in a written decision that "Google’s recommendation and sale of Rescuecom’s mark to its advertising customers are not internal uses."