[Infowarrior] - Terms of Digital Book Deal With Google Revised

[Richard Forno]

  Terms of Digital Book Deal With Google Revised

By BRAD STONE and MIGUEL HELFT
Published: November 13, 2009
http://www.nytimes.com/2009/11/14/technology/internet/14books.html?hp

SAN FRANCISCO — Google and groups representing book publishers and  
authors filed a modified version of their controversial books  
settlement with a federal court on Friday. The changes would pave the  
way for other companies to license Google’s vast digital collection of  
copyrighted out-of-print books, and might resolve Google’s conflicts  
with European governments.

The settlement, for a 2005 lawsuit over Google’s ambitious plan to  
digitize books from major American libraries, outlined a plan to  
create a comprehensive database of in-print and out-of-print works.  
But the original agreement, primarily between Google, the Authors  
Guild and the Association of American Publishers, drew much criticism.
The Justice Department and others said Google was potentially  
violating copyright law, setting itself up to unfairly control access  
to electronic versions of older books and depriving authors and their  
heirs of proper compensation.

The revisions to the settlement primarily address the handling of so- 
called orphan works, the millions of books whose rights holders are  
unknown or cannot be found. The changes call for the appointment of an  
independent fiduciary, or trustee, who will be solely responsible for  
decisions regarding orphan works.

The trustee, with Congressional approval, can grant licenses to other  
companies who also want to sell these books, and will oversee the pool  
of unclaimed funds that they generate. If the money goes unclaimed for  
10 years, according to the revised settlement, it will go to  
philanthropy and to an effort to locate rights holders. In the  
original settlement, unclaimed funds reverted to known rights holders  
after five years.

The changes also restrict the Google catalog to books published in the  
United States, Britain, Australia or Canada. That move is intended to  
resolve objections from the French and German governments, which  
complained that the settlement did not abide by copyright law in those  
countries.

The revised settlement could make it easier for other companies to  
compete with Google in offering their own digitized versions of older  
library books because it drops a provision that was widely interpreted  
as ensuring that no other company could get a better deal with authors  
and publishers than the one Google had struck.

“We’re disappointed that we won’t be able to provide access to as many  
books from as many countries through the settlement as a result of our  
modifications, but we look forward to continuing to work with  
rightsholders from around the world to fulfill our longstanding  
mission of increasing access to all the world’s books,” the  
engineering director for Google Book Search, Dan Clancy, wrote in a  
blog post on the company’s Web site on Friday evening.In the next  
week, Judge Denny Chin of the United States District Court for the  
Southern District of New York is expected to set a date for a fairness  
hearing, where arguments from both sides will be heard about whether  
or not to approve the settlement.

The changes are not likely to please all the opponents of the original  
settlement. But the parties are hoping they will placate the concerns  
raised by the Justice Department, which in September asked a federal  
judge to reject the original $125 million agreement. While the  
decision on whether to approve the deal will be in the hands of Judge  
Chin, the Justice Department’s opinion is an important factor.

Gina Talamona, a spokeswoman for the Justice Department, said that the  
department would review the filing, and that its investigation into  
possible anticompetitive practices involving the rights to digital  
books was continuing.

Google and its partners had hailed the original agreement, signed in  
October 2008, as a public good. They said it would allow Google to  
create an immense digital library that would expand access to millions  
of out-of-print books, while creating new ways for authors and  
publishers to profit from digital versions of their works.

Google’s library would be searchable online, and users would have free  
access to 20 percent of the text in each book. Google would also sell  
subscriptions to the entire collection to universities and other  
institutions. Every public library in the United States would be able  
to offer its patrons free access to the full collection at one  
terminal. Users would be able to buy access to full texts at home.  
Google, authors and publishers would split all revenue generated  
through the system.

As part of the settlement, Google would pay to establish a Books  
Rights Registry, to be run by representatives of authors and  
publishers, that would administer payments.

But earlier this year, academics, legal scholars and some librarians  
expressed concern that the settlement would grant Google a virtual  
monopoly over orphan works, making it nearly impossible for anyone  
else to build a comprehensive digital library. Some librarians feared  
that without competition, Google would be free to raise prices  
arbitrarily.

Other critics said the agreement turned copyright law on its head by  
granting Google the license to profit from works unless rights holders  
objected. Some argued that orphan works authors and foreign authors  
were not properly represented by the Authors Guild. The proposed  
settlement prompted several hundred filings with the court, the vast  
majority opposing all or parts of the deal.

In a Sept. 18 filling, the Justice Department echoed many of the  
concerns. While saying that the settlement provided many benefits, it  
urged Judge Chin to reject it, saying it raised antitrust, class- 
action and copyright issues. But the Justice Department also  
encouraged the parties to work to modify the agreement to salvage its  
benefits and overcome its problems.

The Justice Department filing prompted the parties to withdraw the  
original agreement and revise it.