Google Books Still Faces Criticism After Revision

Google Books settlement

Late Friday, Google submitted to a federal court a revised version of a controversial settlement agreement with two author and publisher groups that would make millions of out-of-print books available online, but opponents of the deal quickly fired back, arguing that the changes are more cosmetic than substantive.

“Our initial review of the new proposal tells us that Google and its partners are performing a sleight of hand,” said Peter Brantley, co-chairman of the Open Book Alliance, a coalition formed to oppose the settlement. “Fundamentally, this settlement remains a set-piece designed to serve the private commercial interests of Google and its partners.”

Chief among the objections are the provisions in the settlement that relate to so-called orphan works, books whose authors are either unknown or cannot be located.

Under the revised settlement, the Book Rights Registry established in the original agreement would now include an independent broker to represent the rights holders of unclaimed works. That individual, who would be approved by a federal court, would serve as an advocate for rights holders of unclaimed books. The revised settlement also directs the registry to seek out rights holders who have not claimed their works, and prevents revenue stemming from those works from being distributed to other members of the settlement.

But critics maintain that Google would still enjoy a unique exemption under copyright law regarding orphan works, one that would shield it from infringement lawsuits for distributing copyrighted content through the Book Search project.

Google, along with the Authors Guild and the Association of American Publishers, in September asked the federal judge who is reviewing the deal to delay a hearing so they could revise the agreement to address concerns expressed by antitrust authorities at the Department of Justice and others.

A spokeswoman for the DoJ said that the department is “reviewing the filing,” and that the investigation is “ongoing.”

The DoJ had submitted a set of objections to Judge Denny Chin of the U.S. District Court for the Southern District of New York. With the revised settlement agreement in hand, Chin is expected shortly to set a new date for a fairness hearing and call for comments from interested parties, as he did with the original agreement.

Attorneys for Google and the author and publisher groups have been meeting with DoJ authorities in an effort to iron out objections to the settlement agreement, which resolved a class-action lawsuit dating to 2005.

The DoJ spokeswoman said the department continues to see the benefit from a “properly structured settlement,” which would offer access to millions of out-of-print books that had fallen into obscurity, while reviving a source of revenue for the rights holders.

But concerns remain that the deal would give Google too much power over a digital-library market that is still in its infancy.

Brantley’s group, the Open Book Alliance, grew out of the nonprofit Internet Archive and is supported by Google rivals Microsoft, Yahoo and Amazon.

Several foreign governments have also weighed in on the deal, with some expressing concerns that it appeared to undermine existing copyright laws.

In response, Google sharply limited the scope of its Book Search project in the revised settlement. The registry now would only include books either registered with the U.S. Copyright Office or published in the United Kingdom, Canada or Australia, three countries which Google said operate under similar copyright systems to the United States.

“The changes we’ve made in our amended agreement address many of the concerns we’ve heard (particularly in limiting its international scope), while at the same time preserving the core benefits of the original agreement,” Dan Clancy, the engineering director of the Google Books project, wrote in a blog post.

Google also revised the language to clarify that any online retailer would be able to sell access to out-of-print books through the registry, with 63 percent of the revenue going to the rights holder and “the majority” of the remainder going to the retailer.

That access had been provided in the original settlement agreement, but only “announced” by Google at a House hearing on the deal in September. The revised version makes the provision explicit.

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