Google staunchly defends pact to digitize books

WASHINGTON Thu Feb 11, 2010 9:41pm EST

An employee answers phone calls at the switchboard of the Google office in Zurich August 18, 2009. REUTERS/Christian Hartmann

An employee answers phone calls at the switchboard of the Google office in Zurich August 18, 2009.

Credit: Reuters/Christian Hartmann

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WASHINGTON (Reuters) - Google Inc 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 February 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 had abandoned its own book project.

"Competitors such as Amazon 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 February 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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Comments (2)
aburt wrote:
One of the aspects that troubles me with the google books settlement is that google obtains a near monopoly over unclaimed books or so-called “orphan” works (where google doesn’t know who they belong to). Not to mention google profits from this monopolistic revenue stream that it technically broke the law to obtain (since the law as written requires permission before copying copyrighted works). Google shouldn’t be placed in that much control of unclaimed works.

Now, Google’s VP and Chief Legal Officer, David Drummond, wrote in the Guardian “we wish there were a hundred such services” as google books. If that’s true and not simply bluster, there’s an easy way to solve all these problems:

Namely, for google to place unclaimed works into an open-source, non-profit status.

In other words, allow anyone to use google’s scanned images, text, and metadata of unclaimed works, for no cost. Allow anyone to make copies if they wish, or link to the images on google’s servers or pull text off their servers dynamically. This would truly free up these orphan works as google (and the authors/publishers groups) deem a public good.

(With one licensing proviso, that developers check back periodically and cease using any books which have become claimed. Disallowing derivative works and escrowing potential owner shares of profits if they later turn up, as per the current proposal, could also be reasonable. I’ve written up more details of this half-baked idea at http://aburt.com/googlebooks.ht if anyone’s interested in the nuts and bolts and subtleties.)

Note this doesn’t affect any authors who’ve claimed their books or opted out of the settlement — only books where google has no record of the owner.

Note this idea is independent of the whole opt-in / opt-out question. (What the Berne Convention calls a “formality” [and forbids], i.e. authors having to actively claim their work rather than passively, like registration or renewal.)

That is: While it seems likely the settlement will get approved with some form of opt-out action required by copyright owners, if not (and google is forbidden from using any copyrighted books without prior permission), then the number of books this idea applies to would be zero. However, given that the authors and publishers groups have greenlighted a proposal that potentially creates millions of such orphan works, it seems likely the final version will create some orphans, thus the question of whether google should be their exclusive, revenue-earning guardian or not bears thought.

(I’m also conducting a survey on how people feel about this issue, which for the curious is at http://critters.org/gbsurv )

Regardless how many works are in the “unclaimed” or “orphan” category, it would seem better for society to prevent google from having a monopoly over these unclaimed works. Putting them into an open-source-like status would prevent that, be a boon to society, and also further google’s own stated desires to have “a hundred such services.”

Feb 12, 2010 10:35am EST  --  Report as abuse
wrote:
How is this different than all the other collections on the internet. Project Guten burg, and other free e-book sites. Also “The Library of Congress” will e-mail you copies of books, or some of them like songs are available on line.

Feb 12, 2010 7:17pm EST  --  Report as abuse
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