* 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 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)