Google Book settlement faces legal assault

Corrected April 13: An earlier version of this story incorrectly characterized the source of Consumer Watchdog's revenue.

A proposed settlement in a copyright lawsuit involving Google's book search has drawn applause, envy, and from a handful of critics, an attempt to derail the deal.

The settlement covers orphan works, meaning books that are still copyrighted but whose copyright holders can't be located. Google would like to scan in and digitize those books as part of its efforts to create a digital library of impressive breadth and scale.

Millions of orphaned works are currently hidden away in library stacks, sometimes ignored because anyone who attempts to digitize them may be subject to copyright infringement. It's unclear whether the owners of these works will ever resurface.

For books, Congress has tried--and failed--to address those concerns for individuals interested in using material from copyrighted but orphan works. Now, under the terms of its settlement related to its Google Books Library Project, the Mountain View, Calif., company is essentially trying to adopt the whole orphanage.

For advocates of free online access to books, the Google Books initiative, which is digitizing the works of several major libraries, may seem like an entirely positive development. Google faced lawsuits from publishers and authors, however, for allegedly "massive" copyright infringement, and eventually agreed last year to a settlement.

While most groups concerned with Google's singular access to orphan works are considering filing briefs with the court before a June 11 hearing, at least one group, Consumer Watchdog, is asking the Justice Department to intervene and plans a meeting on Monday with department officials.

"Google's going to have an unfair advantage against any competitor because they will have already settled this issue," said Consumer Watchdog President Jamie Court. (Consumer Watchdog is a California-based advocacy group that opposes what it calls "big business" lobbyists; its budget was about $3 million in 2007.)

In addition, an article at Wired.com last month noted that a group at New York Law School that plans to file legal objections is bankrolled by Google arch-rival Microsoft.

The future of orphan works was left unsettled last year when the Orphan Works Act of 2008, which passed in the Senate, failed to make it out of committee in the House of Representatives. The bill would have enabled individuals or entities to use orphan work material under certain terms, given they made a diligent attempt to first find the rightful owner.

The issue has fallen by the wayside in Congress as politicians focus on President Obama's priorities, and the House and Senate judiciary committees focus on patent reform. The proposed settlement has made the topic timely again, though, for those interested in seeing orphan works made available for online consumption.

Complicated Terms
Because the settlement resolves a class action suit, authors have the right to "opt out" of the agreement. If the authors do not come forward, however, the terms of the settlement say Google has the right to digitize their work. So while Google will be free from liability if it chooses to digitize these works, other groups interested in using them will still face the risk of violating copyright.

For its part, Google said on Friday that it stands behind its letter to the U.S. Copyright Office from 2005, in which it laid out suggested rules for orphan works, including that a "reasonable search" for the owner should limit liability for infringement under copyright law.

"We strongly support an approach to orphan works that would truly remove legal and practical deterrents for good faith re-users to move archival treasures off of dusty shelves and into circulation for the public's benefit," Google lawyer Alex Macgillivray said in a statement Friday to CNET News. "Effective orphan works legislation should provide a clear, 'objective' standard for defining a diligent search, so that users who meet this standard can rest assured of their safe harbor without undue legal uncertainty."

The settlement still needs to receive court approval, and a number of parties may raise concerns with the court over the far-reaching, and somewhat surprising, terms of the settlement. Concerns about public access to orphan works may be of no concern to the court, however. Judge Denny Chin of the Southern District Court of New York is responsible for approving a settlement that is fair to the class that brought forth the suit--not a settlement that meets what some advocacy groups say is a more compelling, broader public interest.

"There's a deep cleverness" to the settlement, said Pamela Samuelson, a professor at the University of California at Berkeley and co-director of the Berkeley Center for Law and Technology. "Google is getting something that no one else can get."

So what does this mean for the future public access of orphan works?

A handful of scenarios could play out that would impact access to the books. Antitrust authorities could intervene in the settlement, or Congress could pass legislation to allow for other mass digitization projects.

Other companies could try to replicate Google's strategy of undertaking a digitization project and working out a settlement. Or the judge could reject the settlement, and Google could press on with its fair use case.

Consumer Watchdog is appealing to the Justice Department on the grounds that the orphan works situation, along with another provision of the settlement, both create barriers for other companies interested in digitization efforts. The group believes the department could potentially ask a court to compel Google to sub-license the orphaned works if the settlement is approved.

Could Congress interfere?
While Consumer Watchdog's Court thinks the Justice Department may be the most likely entity to intervene, he said "if Congress wants to step up, it would certainly level the playing field."

The Orphan Works Act of 2008, as well as its earlier versions, could not have been practically applied to a mass digitization project such as Google's, since it required the user to seek out the rights holder for every work in question.

The Authors Guild, a group representing more than 8,000 authors that was a party in the settlement, said it would likely favor legislation that would give other entities the same access to orphan works as Google will acquire in the settlement.

"It would depend on the details," said Paul Aiken, executive director of the Authors Guild. "There are a lot of things built into the Google agreement, such as security protocols, no-download rules, that protect the rights holders of orphan works."

While there's no indication any such legislation will be introduced, Aiken said it may be more easily pursued, thanks to the settlement.

"We'd have a template for a way that it can work in which rights holders' interests are protected and yet works are made available," he said.

Legislators should wait for authors to come forward, though, to claim their potential earnings from the settlement. He said the number of orphan works has already begun to shrink, thanks to the settlement.

"Eventually you wind up with a group (of books) that really are orphans, even with the incentive of the settlement," he said. "Those are the works that something may have to be done about and probably are the proper subject of legislation."

Google, not surprisingly, strongly supported orphan works legislation in the past.

However, "one has to wonder if they acquire this settlement whether or not this level of interest will continue," said Peter Brantley, the director of access for Internet Archives, a nonprofit founded to build an Internet library, which is opposed to the settlement. (Google on Friday reiterated that it has "long supported and continues to support" such a law.)

"There's a complex mix of renewed interest (in orphan works) but an attenuation of interest in major actors like Google because they got what they want," Brantley said.

Of course, there is the possibility the settlement could be rejected.

"If it were up to me, I'd rather have Google win the fair use case," said Samuelson. "Then other mass digitization efforts could happen. I think they had a pretty good shot at it."