Google book settlement draws fire in court

Search engine is turning copyright on its head, say opponents of a settlement that would enable Google to scan snippets of out-of-print books.

Greg Sandoval Former Staff writer
Greg Sandoval covers media and digital entertainment for CNET News. Based in New York, Sandoval is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at @sandoCNET.
Greg Sandoval
4 min read

NEW YORK--The disparate and dissenting constituencies that showed up to federal court here on Thursday to comment on Google's plan to create a digital library illustrated just how polarizing and far reaching the effort has become.

The gallery at the federal court house here filled not one but two rooms (one room watched the proceedings via close-circuit TV). Foreign dignitaries squeezed onto benches with cane-wielding advocates for the blind, college professors, literary agents, authors of children's books, and, of course, lots and lots of lawyers.

"Copyright was intended to be an engine of cultural development, not a brake."
-- Lateef Mtima, law professor

The one thing that most in attendance shared was a passionate view of Google's proposed library--both for and against. Google wishes to create a vast and unprecedented digital library and has reached an agreement with groups representing book publishers and authors that would allow the search engine to display digital snippets of out-of-print books still covered by copyright. Their representatives appeared before U.S. District Judge Denny Chin to seek approval for the deal.

Perhaps best known for presiding over the Bernie Madoff securities-fraud case, Chin is now tasked with determining whether the controversial settlement is fair to authors, publishers, Google's competitors, and the public. One main issue is that Google would have the right to exploit titles belonging to authors who have not given their approval.

Chin told the court early in the hearing that he would not issue a ruling Thursday. First, he wanted to allow a long list of stakeholders, which included the U.S. Department of Justice, to comment on the proposal.

Supporters of the settlement told Chin that Google was preparing to usher in an era of free-flowing information like the world has never seen. Google could help span the digital divide and hand the public better access to information if it were allowed to create a digital archive, said Lateef Mtima, a law professor at Howard University and director of the school's Institute for Intellectual Property and Social Justice.

"Copyright was intended to be an engine of cultural development, not a brake," Mtima told Chin.

Several other educators spoke in support of the settlement, including Paul Courant, a professor at the University of Michigan who oversees the school's libraries. He said that digitizing books frees knowledge from the restrictions of geographical location. Courant noted that today, to read any of the university's books, a person must physically be in Ann Arbor, Mich., where the school is located.

"Broad social progress depends on being able to find, use, and re-use the scholarly record," Courant told the court. Google's plan to scan books is "one solution," he said.

Still, among those who addressed the court, opponents to the settlement outnumbered supporters 3 to 1. Chin heard from critics about what they claimed were serious weaknesses in the proposal.

Detractors claimed Google's plan poses an unprecedented threat to the privacy of book readers. Several authors argued that the agreement would decimate copyright law. Competitors, such as Microsoft and Amazon, said the settlement is an attempt by Google to set itself up as the all-powerful emperor of digital information.

Nothing drew more fire than the settlement's plans to force authors to "opt out" in order to prevent Google from scanning snippets of their books. Critics say that Google has everything backward here. They ask why is it that authors must go out of their way to opt out in order to prevent Google from exploiting their work?

Doesn't copyright law already require that they give their permission first before someone can license their work?

William Cavanaugh, an assistant U.S. attorney general told Chin that the publishers and the Authors Guild do not have a right to enable a third party such as Google to use an author's work without their permission. "This (settlement) has the effect of rewriting contracts," said Cavanaugh, who also told the judge that the government continues to investigate whether the agreement violates antitrust laws.

One of the other major concerns for some in the courtroom was privacy. As Irene Pakuscher, speaking on behalf of the German government, testified before Chin that the settlement would negatively impact German authors and publishers, one of her countrymen whispered to a reporter that many Germans just don't trust Google.

Mathias Schneider, who was covering the hearing for ARD German Radio, said many Germans were skeptical of Google's data collection ambitions. "In my country, many people still remember the damage that can be done from gathering too much information about individuals," Schneider said, cautioning that he spoke only for himself and not ARD. "There was the Nazis and then it happened with the former German Democratic Republic, or East Germany."

Both the Nazi and GDR governments were known for widespread spying on citizens.

Representatives from the Electronic Frontier Foundation and The Center for Democracy & Technology described worrisome scenarios whereby information about people's reading habits could be tracked with Google's proposed service. For example, Google would possess records of a person who read a sexually explicit book or some other controversial title. In addition, Google would have the ability to log even the pages the person read.

At the conclusion of the hearing, attorneys for Google and the book publishers and authors told Chin that the settlement isn't perfect but is fair. Google's attorney told the court that the company is indeed interested in getting its hands on rights to so-called "orphan works," the term used to describe titles where the author isn't known or can't be found.

The question of properly paying someone who is entitled to compensation under Google's plan but may not be aware of it has been a hot issue. Google said that the money earned from orphan works is what will make the digital library a feasible business. Google's attorney said that others, such as Microsoft, who attempted to digitize books in the past couldn't monetize their efforts this way and that's why they failed.