Digital Media

(Credit: Google)

Google should promise to protect the privacy of consumers with its Book Search service, the ACLU, Electronic Frontier Foundation and Samuelson Law Technology & Public Policy Clinic at UC Berkeley Law said in a letter to the search giant on Thursday.

"Under its current design, Google Book Search keeps track of what books readers search for and browse, what books they read, and even what they 'write' down in the margins," the groups wrote in a letter (PDF) to Google Chief Executive Eric Schmidt.

"Given the long and troubling history of government and third-party efforts to compel libraries and booksellers to turn over records about readers, it is essential that Google Books incorporate strong privacy protections in both the architecture and policies of Google Book Search," the letter said. "Without these, Google Books could become a one-stop shop for government and civil-litigant fishing expeditions into the private lives of Americans."

In 2006, the U.S. Attorney demanded that Amazon turn over book purchase records of 24,000 customers, the groups said in an e-mail statement.

Specifically, the groups are calling for Google to promise to respond only to properly issued warrants from law enforcement and court orders and notify readers if information about them has been requested; allow readers to search and browse anonymously; give readers control over their purchases and data and prevent others from viewing their activities; allow readers to give books to others without tracking; tell readers what information is being collected and maintained and why data has been disclosed if it has.

Google also should keep search log information for no longer than 30 days and agree not to share reader activity with third parties or link data collected about use of Book Search to any other Google services without user consent, the groups said.

A Google Books representative said it's premature for Google to say what its privacy policy will be, but that Google will continue to discuss the issues with advocates.

"We have a strong privacy policy in place now for Google Books and for all Google products. But our settlement agreement hasn't yet been approved by the court, and the services authorized by the agreement haven't been built or even designed yet," Dan Clancy, engineering director for Google Books, wrote in a blog post on Thursday.

"That means it's very difficult (if not impossible) to draft a detailed privacy policy," he wrote. "While we know that our eventual product will build in privacy protections--like always giving users clear information about privacy, and choices about what if any data they share when they use our services--we don't yet know exactly how this all will work. We do know that whatever we ultimately build will protect readers' privacy rights, upholding the standards set long ago by booksellers and by the libraries whose collections are being opened to the public through this settlement."

Google has negotiated deals with publishers for current works and is also digitizing public-domain works. For out-of-print books still protected by copyright, the company reached a $125 million proposed settlement with U.S. publishers and authors that awaits court approval.

Critics complain that the deal, which is scheduled to be implemented in October, would effectively give Google a monopoly over books that are in copyright but out of print. Google argues that the agreement will make millions of books hidden on library shelves more accessible and give publishers and authors a new opportunity to profit from them.

Earlier this month, the U.S. Department of Justice said it was launching a formal investigation into the proposed settlement. And European Union regulators are also taking a close look.

Google Book Search now calls out the placement of search terms more clearly in books and magazines.

(Credit: Screenshot by Tom Krazit/CNET)

All the talk about Google's Book Search lately has focused more on the law than the page, but Google continues to improve the product at the heart of those discussions.

Google rolled out several improvements to its Book Search product Thursday. Searchers can now immediately see where their search term appears in a given book, see thumbnails of all the pages in a book or magazine, and embed links to books in their blogs, among other things.

The improvements, detailed Thursday in a blog post, apply only to public-domain and those Google has negotiated the rights to publish. The hubbub over the Google Book Search settlement is that it grants Google the right to post copies of out-of-print books that are still under copyright.

Google, the company best equipped and most motivated to digitize the world's books, wants to offer the world an online Library of Alexandria. The decisions of the Justice Department, authors, book publishers, a federal judge, and Google itself likely will determine whether the company actually does.

Nobody in recent years has accused Google of lacking ambition, but its Google Book Search project is certainly among the company's top projects when it comes to chutzpah. That's not just because of the technical and financial hurdles of scanning, indexing, and displaying online millions of books, it's also because of the tangled intellectual property and legal concerns involved in the controversial project.

After revealing the book-search project in 2003, Google drew copyright infringement lawsuits from the Authors Guild and the Association of American Publishers in 2005, but an October 2008 proposed settlement, now under review by Judge Denny Chin of the U.S. District Court for the Southern District of New York, has converted those groups from adversaries to allies.

The settlement, if approved, could neatly cut a Gordian knot of copyright entanglements though setting Google back $125 million. That's because it would enable Google not only to display books that are out of copyright and those that are in print by cooperating publishers, as it does today, but also those from the vast collection of in-copyright brooks that are out of print--even when those holding rights to those books didn't specifically agree to Google's plan.

The complicated proposed settlement invoked the wrath of some authors concerned it would grant Google monopolistic power over online publishing, and the court extended the deadline for authors to choose whether to opt out of the settlement from May to September. Then the other shoe dropped this month: the Justice Department signaled serious antitrust scrutiny by issuing subpoena-like civil investigative demands, or CIDs, to check into the matter.

AIG and General Motors apparently are too big to fail. But the way the opposition to Google Book Search is shaping up, it looks like some believe Google is too big to succeed.

The Justice Department appears to be stepping up its antitrust probe of Google's settlement last year of a class-action lawsuit filed by groups representing authors and publishers, according to reports in The New York Times and The Wall Street Journal.

The Justice Department has sent formal requests for information, called civil investigative demands, or CIDs, to publishers involved in the settlement, according to the reports. The increased scrutiny may signal the Justice Department's opposition to the settlement, which still requires court approval.

Under the proposed $125 million settlement with the Authors Guild and the Association of American Publishers, announced in October, Google would have the right to show content from books online that are still in copyright but that are no longer in print. In addition, those copyright holders could be paid for online sales of their books.

Authors and publishers may opt out of the proposed settlement, but if they do nothing, they're considered part of it. That includes authors who can't be located.

Google has book-search agreements in place with numerous publishers, but the company hopes that the settlement will permit it to bring many more books to into its service. In a victory for settlement opponents, a judge gave authors four more months to decide whether to participate.

Google is digitizing the works from many major libraries, including the New York Public Library and the libraries at Stanford and Harvard universities, and is making those texts searchable on pages with advertisements. The Authors Guild, which represents more than 8,000 authors, sued Google in September 2005, alleging that the company's digitizing initiative amounted to "massive" copyright infringement. Five large publishers filed a separate lawsuit as representatives of the Association of American Publishers.

Currently, users of Google Book Search are able to view snippets of books online. The settlement agreement would allow Google to make whole pages of copyright works available to online searchers.

The University of Michigan has signed up as the first library to participate in Google's book-scanning project under the terms of Google's proposed settlement with library groups.

Google and UM have been working together since 2004 on digitizing the university's library collection, but the Google Book Search settlement would allow Michigan to offer its books online as part of a subscription, or in some cases for free. The settlement has drawn reported attention from the government as well as library groups worried over the costs associated with access to such a large digital library amassed by a single company.

In exchange for participating in the project, however, Google plans to subsidize the cost of the university's subscription to the digital library. Michigan was also able to negotiate the right for future participants to review the cost of the institutional subscriptions from time to time. "If they determine that prices are too high, University of Michigan and other participating libraries who sign these collective terms can challenge the prices through arbitration, and Google will be required to work with the (Book Rights) Registry to adjust the pricing accordingly," the university said on its Web site.

Authors have until September to decide if they want to opt out of the settlement and withhold their works from the digital library. The settlement would have Google install a free public terminal in libraries around the country for access to digital copies of public domain works, copyright works that Google is authorized to reproduce, and out-of-print titles. Other libraries would then be offered a subscription to the digital library for their own patrons.

Three groups representing hundreds of libraries lodged a long series of concerns about a proposed settlement of lawsuits over Google Book Search on Monday--but refrained from objecting overall.

Specifically, the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries expressed some affinity for Google's mission of sharing books with the public, but raised concerns in a legal filing that the settlement would concentrate power in Google's hands and poses pricing and privacy concerns.

Google has patented technology for scanning books.

(Credit: U.S. PTO)

Google is scanning millions of books, presenting their contents online at the Google Book Search site and blending some information into its regular search results, but the move triggered lawsuits by the Association of American Publishers and the Authors Guild. A proposed settlement of the class-action suit would permit Google to share some contents of books online--not just those that are in the public domain and those still being sold with which Google has agreements with publishers, but also those that are still in copyright but out of print.

The settlement terms are of high interest to the library world. Under the proposed settlement, Google would offer a free computer terminal in U.S. libraries that would permit people to read books online and a subscription service that would permit paying customers, such as larger libraries, to offer more computer terminals. In cases where readers or institutions pay for access to online books, funds would be divided between Google and a proposed independent non-profit group, the Book Rights Registry, set up to handle payments, find authors and other rights holders, and let them include or exclude their works from the project.

"The library associations do not oppose approval of the settlement. The settlement has the potential to provide unprecedented public access to a digital library containing millions of books," the groups said in their filing. "However, the digital library enabled by the settlement will be under the control of Google and the Book Rights Registry. Moreover, the cost of creating such a library and Google's significant lead-time advantage suggest that no other entity will create a competing digital library for the foreseeable future."

That power could put libraries at a disadvantage, they argue.

"We are concerned that the cost of an institutional subscription may skyrocket, as academic journal subscriptions have over the past two decades," said Erika Linke, president of Association of College and Research Libraries, in a statement.

Added Jim Rettig, president of the American Library Association, the proposed settlement "offers no assurances that the privacy of what the public accessed will be protected, which is in stark contrast to the long-standing patron privacy rights libraries champion on behalf of the public."

In its response, Google looked on the sunny side but didn't address pricing or privacy details: "We're pleased that the thousands of librarians and libraries represented by the ALA recognize the promise of our groundbreaking agreement, and we appreciate that the Library Associations do not oppose approval of the settlement. Google is proud to partner with dozens of libraries around the world as part of our Book Search efforts, and we have consistently maintained that, if approved by the court, our settlement agreement stands to unlock access to millions of books for users in the U.S."

But the library groups struck a more sober tone in their filing. Take, for example, this section on the power Google would get by virtue of obtaining online publishing rights through the class action settlement:

The settlement of copyright class action litigation might well have been the only feasible way this research tool could have been created. A class action settlement provided perhaps the most efficient mechanism for cutting the Gordian knot of the huge transactions costs of clearing the rights of millions of works whose ownership often is obscure. However, the class representatives and Google structured the settlement in such a manner as to give them enormous control over this essential facility. This is not surprising, given their economic interests. Indeed, precisely because of their economic interests, it is unlikely that they would have agreed to a structure that did not grant them such control.

To be sure, nothing in the Settlement prevents another entity from undertaking a mass digitization effort similar to Google's. But given the enormous cost of such an effort, and Google's significant lead time advantage (Google has been digitizing in-copyright books since 2004), no other entity is likely to so in the near future. Hence, there is no foreseeable threat to the control Google and the Registry have over this essential research facility.

The Justice Department is examining antitrust issues regarding a proposed settlement of Google Book Search lawsuits with the search giant, according to reports in the Wall Street Journal and New York Times on Tuesday, citing unnamed sources.

It's unclear what might come of the reported talks, but the Justice Department is not to be treated lightly. The department leads enforcement of antitrust law, and Google backed down from its threatened antitrust lawsuit against it in 2008 regarding a search-ad partnership with Yahoo.

The proposed settlement with the Authors Guild and the Association of American Publishers, announced in October, would among other things give Google the right to show content from books online that are still in copyright but that are no longer in print. In addition, those copyright holders could be paid for online sales of their books.

Authors and publishers may opt out of the proposed settlement, but if they do nothing, they're considered part of it. That includes authors who can't be located.

Google has book-search agreements in place with numerous publishers, but the company hopes that the settlement will permit it to bring many more books to into its service. But in a tactical victory on Tuesday for settlement opponents, a judge gave authors four more months to decide whether to participate.

Antitrust issues have arisen in the Book Search case. One notable voice is Harvard University's head librarian, Robert Darnton, who in a February article in the New York Review of Books worried about the control Google would get through the settlement.

"The class-action character of the settlement makes Google invulnerable to competition," he said. "Most book authors and publishers who own U.S. copyrights are automatically covered by the settlement. They can opt out of it; but whatever they do, no new digitizing enterprise can get off the ground without winning their assent one by one, a practical impossibility, or without becoming mired down in another class action suit. If approved by the court--a process that could take as much as two years--the settlement will give Google control over the digitizing of virtually all books covered by copyright in the United States."

However, Paul Courant, though, dean of libraries at the University of Michigan--a Google Book Search Partner and fan of the proposed settlement--objected to Darnton's view. "His view of the world that will likely emerge as a result of Google's scanning of copyrighted works is a dystopian fantasy," Courant said.

Google and the Justice Department didn't immediately comment on the report.

Update at 3:11 p.m. PDT: This story now includes a comment from Consumer Watchdog.

A federal judge has granted authors worldwide four more months to decide whether to participate in a settlement involving Google's online Book Search service.

Absent the ruling, made by Judge Denny Chin of the U.S. District Court for the Southern District of New York, authors would have had until May 5 to decide whether to join the settlement or opt out.

But according to a law clerk in Chin's court, as well as one of the lawyers in the case, the deadline to opt out of the settlement is now September 4, 2009, and the final fairness hearing in the case will be held on October 7, in New York.

"We're excited about the proposed settlement agreement regarding Google Book Search," said Gabriel Stricker, a Google spokesperson, in an e-mail to CNET News. "As we've said previously, the settlement is highly detailed, and we want to make sure rightsholders everywhere have enough time to think about it and make sure it's right for them."

In fact, though, Google may not be happy with the outcome, and some suggest that the very fact that the company asked for a delay at all indicated it didn't have much faith in its ability to prevail in the end.

"The four-month extension is a big victory for those who oppose the Google Books settlement," said John Simpson, a consumer advocate with Consumer Watchdog. "It's a clear recognition by the judge that there are problems with the proposed deal. The extension also gives the Justice Department more time to consider the antitrust issues that we and others have raised and discussed with them."

As proposed, the settlement of the case filed by the Authors Guild and the American Association of Publishers in 2005, revolves around Google's ability to include content from books online, and in particular "orphan" works that are still under copyright, but are out of print or written by authors who can't be found.

But some parties to the deal are objecting to Google's proposed settlement.

Google had sought an extension to the settlement of 60 days. On Monday, the company's associate general counsel for products and intellectual property wrote in a blog post explaining the request for a 60-day extension that, "The settlement is highly detailed, and we want to make sure rightsholders everywhere have enough time to think about it and make sure it's right for them."

"This is my understanding of how this goes," a source close to the legal matter told CNET News. "(Google, the Authors Guild and the American Association of Publishers) blanket the Earth and try to let everybody know about the agreement, and right now (they) believe (they) have blanketed the Earth."

The source also suggested that Google and the plaintiffs have been working on the settlement for years, so whether the outcome is "years plus two months or years plus four months is neither here nor there."

But, the source added, those involved in promoting the book service are eager to see it get off the ground and that the four-month extension just means delaying that for two months longer."

Federal judge Denny Chin granted this four-month extension to a group of authors involved in a class action against Google over the search giant's Book Search service. Click image to enlarge and read page one of his order.

Chin's ruling Tuesday seemed to be a direct response to a request made last week by seven authors for a full four-month extension due to the proposed settlement's complexity.

"First, two months' time is insufficient to understand the implications of a settlement of this scope," the authors wrote in their request (PDF). "Second, substantial defects in notice of the settlement undermine authors' ability to assess their rights; and third, more time is required simply to understand the complex terms of the agreement."

Chin cited a letter from the authors, as well as a separate letter from a group of academic authors in making his decision.

"Upon consideration of the letters, I will grant approximately a four-month extension," Chin wrote.

In an interview given to Publisher's Weekly, Gail Knight Steinbeck, one of the seven authors who asked for the four-month extension, praised Chin's decision. "We now have (the) time to really sink our teeth into what this agreement will mean," she told the magazine, adding that she felt that the authors now had the time they needed to figure out whether modifications to the settlement will make it suitable, whether to opt out or whether to fight the settlement.

Joanne Zack, an attorney for the author sub-class and the Authors Guild, said she had no comment on the settlement extension.

This post was updated at 5:53 p.m. PDT with details about an extension request of the May 5 deadline filed by seven authors.

Google said Monday it's seeking 60 more days to find authors and persuade them of what it believes are the merits of a settlement involving its online Book Search service.

The proposed settlement of the 2005 case filed by the Authors Guild and the American Association of Publishers involves Google's right to show information from books online--in particular "orphan" works that are still covered in copyright but that are in limbo, for example being out of print or written by authors who can't be located. Currently, authors must respond by a May 5 deadline to opt out, otherwise authors will be included in the settlement.

"The settlement is highly detailed, and we want to make sure rightsholders everywhere have enough time to think about it and make sure it's right for them. That's why we've asked the court for permission to extend the opt-out deadline for an extra 60 days," said Alexander Macgillivray, Google's associate general counsel for products and intellectual property, in a blog post Monday.

"It's pretty easy for credit card companies to contact their cardholders--they send bills to them all the time. The world's authors, publishers and their heirs are much more difficult to find," Macgillivray said. "So, as the New York Times recently reported, the plaintiffs hired notice campaign specialists Kinsella Media Group to tell them about this exciting settlement, and Google has devoted millions of dollars to fund this notice campaign. Kinsella started by launching a website for authors and publishers and a direct-mail effort. Beginning in January, Kinsella published ads in newspapers and other publications all over the world from Fiji to the Cook Islands to Greenland. And of course, they also placed ads right here at home in the U.S., in publications as diverse as Writer's Digest and USA Today."

Google is facing resistance to the settlement.

Seven authors last week requested a four-month extension (PDF) of the May 5 deadline due to the complexity of the proposed settlement, among other reasons.

"First, two months' time is insufficient to understand the implications of a settlement of this scope," the appeal letter reads. "Second, substantial defects in notice of the settlement undermine authors' ability to assess their rights; and third, more time is required simply to understand the complex terms of the agreement."