UPDATE 2-Google staunchly defends pact to digitize books
* Google says its plan to digitize books legal
* Search giants say critics ignore their own dominance
* Hearing on deal set for Feb. 18 (Adds details on Google argument, comment from critics)
By Diane Bartz
WASHINGTON, Feb 11 (Reuters) - Google Inc (GOOG.O) argued in a staunch and sometimes eloquent brief that an agreement reached with the Authors Guild to digitize millions of books was legal and a contribution to human knowledge.
Google's ambitious plan has been praised for expanding access to books but the Justice Department criticized it on Feb. 4 on a variety of grounds, saying it potentially violated antitrust and copyright laws.
Google disagreed, saying on Thursday that the amended settlement agreement complies with the law. "With only one significant exception, the parties sought to implement every suggestion the United States (Justice Department) made in its September submission," Web search leader said.
That exception was a decision to keep books in the project unless authors decided to opt out. Finding all the authors in question and requiring them to sign up for the program "would eviscerate the purposes of the ASA (amended settlement agreement)," it said.
Google also argued that the deal did not harm libraries and did nothing to stop other groups seeking to digitize books.
"The ASA will enable the parties to make available to people throughout the country millions of out-of-print books," Google said in its brief. "This is precisely the kind of beneficial innovation that the antitrust laws are intended to encourage, not to frustrate."
Google also took a swing at corporate rivals, noting that Microsoft Corp (MSFT.O) had abandoned its own book project.
"Competitors such as Amazon (AMZN.O) raise anxieties about Google's potential market position, but ignore their own entrenched market dominance," Google said in its brief.
Another objection has been that it is inappropriate to use the class action mechanism "to implement forward-looking business arrangements." But, Google said, the Justice Department did not point to any cases disapproving a settlement on those grounds.
Google further sought to downplay the economic significance of the books in the project, saying that most were either out of copyright or no longer in print. The authors of most of the books in neighborhood bookstores would withhold their books from the project.
The Open Book Alliance, made up of Google's corporate rivals, some library and writers groups and other groups digitizing books, rejected Google's arguments.
"Despite the spin from Google's attorneys, the amended settlement will still offer the search and online advertising giant exclusive access to books it has illegally scanned to the detriment of consumers, authors and competition," the group said in an email statement.
U.S. District Judge Denny Chin, who must approve the class action suit for it to go into effect, has scheduled a hearing on the settlement for Feb. 18.
The agreement is designed to settle a 2005 class action lawsuit filed against Google by authors and publishers who had accused the search engine giant of copyright infringement for scanning collections of books from four universities and the New York Public Library.
The Justice Department recommended in September that the agreement be rejected.
Faced with this and other opposition, Google and a group of authors and publishers made a series of changes to the deal in November that has failed to stem criticism of it.
The case is The Authors Guild et al v. Google, Inc, U.S. District Court, Southern District of New York, No. 05-08136.
(Reporting by Diane Bartz; Editing by Richard Chang)
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