[Infowarrior] - Google’s Plan for Out-of-Print Books Is Challenged

[Richard Forno]

Google’s Plan for Out-of-Print Books Is Challenged
By MIGUEL HELFT
http://www.nytimes.com/2009/04/04/technology/internet/04books.html?ref=global-home&pagewanted=print

SAN FRANCISCO — The dusty stacks of the nation’s great university and  
research libraries are full of orphans — books that the author and  
publisher have essentially abandoned. They are out of print, and while  
they remain under copyright, the rights holders are unknown or cannot  
be found.

Now millions of orphan books may get a new legal guardian. Google has  
been scanning the pages of those books and others as part of its plan  
to bring a digital library and bookstore, unprecedented in scope, to  
computer screens across the United States.

But a growing chorus is complaining that a far-reaching settlement of  
a suit brought against Google by publishers and authors is about to  
grant the company too much power over orphan works.

These critics say the settlement, which is subject to court approval,  
will give Google virtually exclusive rights to publish the books  
online and to profit from them. Some academics and public interest  
groups plan to file legal briefs objecting to this and other parts of  
the settlement in coming weeks, before a review by a federal judge in  
June.

While most orphan books are obscure, in aggregate they are a valuable,  
broad swath of 20th-century literature and scholarship.

Determining which books are orphans is difficult, but specialists say  
orphan works could make up the bulk of the collections of some major  
libraries.

Critics say that without the orphan books, no competitor will ever be  
able to compile the comprehensive online library Google aims to  
create, giving the company more control than ever over the realm of  
digital information. And without competition, they say, Google will be  
able to charge universities and others high prices for access to its  
database.

The settlement, “takes the vast bulk of books that are in research  
libraries and makes them into a single database that is the property  
of Google,” said Robert Darnton, head of the Harvard University  
library system. “Google will be a monopoly.”

Google, which has scanned more than seven million books from the  
collections of major libraries at its own expense, vigorously defends  
the settlement, saying it will bring great benefits to the broader  
public. And it says others could make similar deals.

“This agreement expands access to many of these hard-to-find books in  
a way that is great for Google, great for authors, great for  
publishers and great for readers,” said Alexander Macgillivray, the  
Google lawyer who led the settlement negotiations with the Association  
of American Publishers and the Authors Guild.

Most of the critics, which include copyright specialists, antitrust  
scholars and some librarians, agree that the public will benefit. But  
they say others should also have rights to orphan works. And they  
oppose what they say amounts to the rewriting, through a private deal  
rather than through legislation, of the copyright rules for millions  
of texts.

“They are doing an end run around the legislative process,” said  
Brewster Kahle, founder of the Open Content Alliance, which is working  
to build a digital library with few restrictions.

Opposition to the 134-page agreement, which the parties announced in  
October, has been building slowly as its implications have become  
clearer. Groups that plan to raise concerns with the court include the  
American Library Association, the Institute for Information Law and  
Policy at New York Law School and a group of lawyers led by Prof.  
Charles R. Nesson of Harvard Law School. It is not clear that any  
group will oppose the settlement outright.

The groups representing publishers and authors, which filed a class- 
action lawsuit against Google in 2005 in the Federal District Court  
for the Southern District of New York on behalf of their members, are  
defending the settlement, as are some librarians at major universities.

“What we were establishing was a renewed access to a huge corpus of  
material that was essentially lost in the bowels of a few great  
libraries,” said Richard Sarnoff, former chairman of the Association  
of American Publishers and co-chairman of the American unit of  
Bertelsmann, the parent company of Random House.

The lawsuit claimed that Google’s practice of showing snippets of  
copyrighted books in search results was copyright infringement. Google  
insisted that it was protected by fair use provisions of copyright law.

The settlement, which covers all books protected by copyright in the  
United States, allows Google to vastly expand what it can do with  
digital copies of books, whether they are orphans or not.

Google will be allowed to show readers in the United States as much as  
20 percent of most copyrighted books, and will sell access to the  
entire collection to universities and other institutions. Public  
libraries will get free access to the full texts for their patrons at  
one computer, and individuals will be able to buy online access to  
particular books.

Proceeds from the program, including advertising revenue from Google’s  
book search service, will be split; Google will take 37 percent, and  
authors and publishers will share the rest. Google will also help set  
up a Book Rights Registry, run by authors and publishers, to  
administer rights and distribute payments.

Authors are permitted to opt out of the settlement or remove  
individual books from Google’s database. Google says it expects the  
pool of orphan books to shrink as authors learn about the registry and  
claim their books.

While the registry’s agreement with Google is not exclusive, the  
registry will be allowed to license to others only the books whose  
authors and publishers have explicitly authorized it. Since no such  
authorization is possible for orphan works, only Google would have  
access to them, so only Google could assemble a truly comprehensive  
book database.

“No other company can realistically get an equivalent license,” said  
Pamela Samuelson, a professor at the University of California,  
Berkeley, and co-director of the Berkeley Center for Law and Technology.

Mr. Macgillivray said Google shared with many of its critics the goal  
of making orphan works more widely accessible. He said Google would  
continue to lobby for legislation to that effect. And he said that  
nothing prevented a potential rival from following in its footsteps —  
namely, by scanning books without explicit permission, waiting to be  
sued and working to secure a similar settlement.

Yet even Michael J. Boni, the lead lawyer representing the Authors  
Guild, conceded that “Google will always have the advantage of having  
access to 100 percent of the orphan works.”

Mr. Darnton of Harvard said he feared that without competition Google  
would be free to “raise the price to unbearable levels.”

But Mr. Macgillivray and Mr. Boni said prices would be kept in check,  
in part by the goal, spelled out in the agreement, to reach as many  
customers as possible.

Some of Google’s rivals are clearly interested in the settlement’s  
fate. Microsoft is helping to finance the research on the settlement  
at the New York Law School institute. James Grimmelmann, an associate  
professor at the institute, said its work was not influenced by  
Microsoft. Microsoft confirmed this but declined to comment further.

Amazon also declined to comment. An unmatchable back catalog could  
eventually make Google a primary source for digital versions of books,  
old and new, threatening other e-book stores.