Google's plan for out-of-print books is challenged

The exclusivity of a legal settlement giving Google online rights to out-of-print "orphan" books is being challenged in court.

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 7 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 at Berkeley and co-director of the Berkeley Center for Law and Technology.

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.com 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.

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