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Google and groups representing authors and publishers have asked for more time to revise their controversial settlement over the rights to scan digital books.

Judge Denny Chin approved the request to extend the deadline to Friday, which was submitted ahead of a Monday night deadline for the parties to submit a revised settlement after the U.S. Department of Justice objected to the settlement as previously worded. After it was sued in 2005 by The Author's Guild and other groups representing the publishing industry over its decision to scan certain types of books without explicit permission, Google reached a settlement a year ago that would grant it unique rights to scan books that have gone out of print but are still protected by copyright laws.

However, that settlement has been met with objections from authors and privacy advocates almost since it was filed, and Google has faced a long and difficult road in getting it approved. Monday's delay comes after a Friday meeting with the Justice Department, according to a copy of the request filed with the U.S. Federal Court for the Southern District of New York.

Google refused to comment on the subject of that meeting, but it's not too hard to imagine that the Justice Department was not ready to give the new draft its blessing. It had previously objected to provisions of the deal that it felt "serious in isolation, and, taken together, raise cause for concern." However, in recent weeks Google has sought to downplay the proposed changes as "targeted and surgical."

The patient apparently needs more time.

Every book project is a series of deadlines. Google's faces an important one Monday.

Google and representatives for author and publisher groups are due to submit a revised Google Book Search settlement in New York federal court Monday. It's been a long year since they first reached a settlement they deemed "historic," which would have granted Google unique rights to continue scanning out-of-print yet copyright-protected books as it builds out a digital library containing more than 10 million books, which also includes public domain works as well as books scanned through partnerships with publishers.

However, opposition to the settlement grew in the months following its release, and the intervention of the Department of Justice in September forced the parties to rework the settlement. Google has sought to downplay the changes that are in the works, but the filing will showcase just how much Google and author groups have had to bend in order to satisfy the government.

It's not clear how widespread the changes will be. The Justice Department objected to several items it found "serious in isolation, and, taken together, raise cause for concern." The principal objection seemed to concern the Books Rights Registry, a nonprofit organization set up by Google and the author groups to distribute royalty payments from Google Book Search to authors. The group's directors will be picked by the parties, and while Google insists that anyone else who wants to scan out-of-print books can negotiate with the Registry, some objectors are concerned that they won't be able to get the same deal that Google has received.

The main problem, however, is that the settlement effectively sets copyright law precedent by affirming Google's position that it was, and is, allowed to scan books that are out of print but protected by copyright under fair-use rights. This does not sit well with many, and ahead of the revised settlement's release, Google's loudest opponents made their case that Google and author groups should defer to Congress on this issue.

"Congress must retain the exclusive authority granted by the U.S. Constitution to set copyright policy," declared the Open Book Alliance, a group that includes the Internet Archive, Microsoft, Amazon, and Yahoo.

The revised settlement is expected to be filed with the U.S. District Court for the Southern District of New York late on Monday. It's believed that Judge Denny Chin will order some sort of waiting period for interested parties to review the settlement before holding a final hearing, perhaps in early 2010.

MOUNTAIN VIEW, Calif.--As Google closes in on a November 9 deadline to submit a revised settlement in the Google Books case, it continues to pull out all the stops to reassure the world it has the best of intentions.

The controversy over Google's settlement with groups representing book authors and publishers rages on, almost a year after it was first reached. After Google was sued in 2005 for digitizing books without explicit permission, it reached a proposed settlement in October 2008 that would give it unique rights to scan out-of-print yet copyright-protected books, exciting some librarians but raising the ire of many within the publishing and literary communities.

Nevertheless, Google has made painstaking attempts to engage with its enemies in the publishing world. Dan Clancy, engineering director for Google Books, has traveled the country meeting with opponents and supporters, patiently explaining Google's position and preaching the value of a publicly available archive of digital books.

On Thursday, Google hosted a group of four librarians from Europe, where Google has signed partnership agreements with five libraries to discuss the benefits of the project. The settlement is obviously a U.S. matter, but the contentious issues in the settlement do not exactly apply to Europe, because Google says it has not scanned out-of-print but copyright-protected books published in Europe.

Therefore, in Europe Google has only scanned public domain works held by its library partners and books for which it has negotiated scanning rights with rights holders. Still, the settlement process is being watched closely by European authors who have had books published in the U.S., as well as European librarians who are a little jealous over the resources their American counterparts could enjoy under the settlement.

"It's like everyone in the U.S. gets to use cell phones and I'm stuck with a landline," said Sarah Thomas, Bodley's librarian and director of Oxford University's Library Service. "It's a tremendous barrier to advancing knowledge."

Make no mistake: getting this settlement finalized is easily one of Google's highest priorities of the year. There are financial incentives--Google will host links to book stores and place ads on the search result pages--but this is also a core part of Google's mission to organize the world's information.

Even the hardiest Google opponents agree that a digital library of the scope Google is proposing will have tangible benefits for the world. This is especially true for the European libraries, which store books dating as far as the 17th century that are crumbling with the advance of age. Few people are able to see those books because of their value and the remoteness of their location, but putting them online could allow the world to read books they would have once traveled thousands of miles to see, allow researchers from around the world to study their contents, and preserve the knowledge for future generations.

But some, such as German Prime Minister Angela Merkel, are wary about a single company controlling such a library. "The German government has a clear position: copyrights have to be protected on the Internet," The Guardian quoted her as saying last week.

In any event, at the moment European libraries are on the outside when it comes to unlocking the knowledge stored in the millions of out-of-print but copyright-protected books on their shelves. Google's argument all along in the U.S. has been that it was allowed to scan those types of books under fair-use laws, which was disputed by authors and publishers in 2005 but authorization to do so is a key part of the proposed settlement.

Copyright laws vary across Europe, but the concept of fair use generally does not exist, and most books are protected by copyright for 70 to 80 years after the death of the author, the librarians said. Historical works are in the public domain, but that's just a fraction of the overall number of books stored in libraries throughout the world.

Out-of-print books will only be available as limited previews to searchers with links to stores at which they can be bought, but those books will be part of a database that is available to researchers and librarians through an institutional subscription. Researchers outside the U.S. won't have access to that database, which means U.S. libraries and universities would have an advantage.

"We ask our researchers what they want, and they say, 'we need a Google Books European settlement. We need access to books that are out of print but are still in copyright,'" said Klaus Ceynowa, deputy director general for the Bavarian State Library in Germany.

Manuela Palafox, head of digital editions at the University of Complutense of Madrid, Spain, took it a step further. "The most important thing in Europe is to review our copyright laws. We need to adapt it to the digital age."

This, of course, is part of the opposition to Google's settlement in the U.S. Instead of leaving it up to Congress to reform U.S. copyright laws to settle once and for all whether digitizing out-of print but copyright-protected books should be allowed, the settlement is granting that unique sweeping right to a single corporation, and forcing others who may want to digitize these books to cut licensing deals with an organization funded by Google and staffed by directors picked by the groups representing authors and publishers.

So while Google works feverishly on a new settlement in the U.S. ahead of a November 9th deadline, its legal battles may be just beginning. Chinese authors are reportedly gearing up to oppose Google's efforts, and its mission of organizing the world's information may be stymied if European copyright laws forbid the digitization of a huge swath of books published in the last century.

The Google Books case will drag on for at least a few more months, as a judge in New York has set a November deadline for the submission of a new settlement.

Google's original settlement with groups representing publishers and authors over the right to digitize certain kinds of books was met with howls of objection from authors, privacy advocates, and perhaps most importantly, the U.S. Department of Justice. A hearing on whether to approve that settlement was originally scheduled for Wednesday, but last month the publisher and author groups asked for more time to work out a new deal that satisfies the Justice Department's concerns.

The parties were directed by Judge Denny Chin to submit a reworked settlement by November 9, according to the Associated Press. An approval hearing would be held at some point after that, and the judge will only hear objections to any of the new provisions at that hearing.

The original settlement was signed last October, but final approval of that settlement has now been delayed twice as the publishing and technology communities grapple with the complicated and far-reaching effects of the deal. Under the settlement as previously written, Google would have been the only organization in the world with explicit permission to digitize out-of-print but copyright-protected books. In addition, an independent Books Rights Registry set up as part of the deal would have been the sole clearinghouse for revenue shared with book rights holders and would have had the power to set prices for institutional subscriptions to the library of scanned books.

The judge overseeing Google Books settlement has agreed to the plaintiffs' request for a delay of the final hearing scheduled to approve the controversial settlement, which is being reworked by the parties.

Judge Denny Chin of the U.S. District Court for the Southern District of New York had been scheduled to oversee a October 7 hearing about whether to approve a 2008 settlement between Google and several groups representing authors and publishers. However, the settlement, which gives Google sweeping rights to digitize out-of-print but copyright protected books, has drawn staunch opposition from many corners of the literary world as well as the U.S. Department of Justice.

As a result, the settlement is in the process of being reworked, and Judge Chin agreed to give the parties more time to rework the settlement following a request from the plaintiffs filed earlier this week. "Under all the circumstances, it makes no sense to conduct a hearing on the fairness and reasonableness of the current settlement agreement, as it does not appear that the current settlement will be the operative one," Chin wrote in a letter sent to both parties.

Instead, the parties will hold a status conference on the 7th to figure out what to do next. Chin noted that this case has been in the works for over four years, when groups representing authors and publishers sued Google in 2005 for digitizing books without explicit permission.

Updated 2:18 p.m. PDT with comment from Google.

The parties involved in the Google Book Search settlement have asked a federal court to postpone an October hearing to approve the proposed settlement while they work out a new deal.

When the Department of Justice made it clear last Friday that it could not support the settlement as written--which would give Google unique rights to scan out-of-print books still protected by copyright law--it said the parties were in talks to amend the settlement. In a joint brief (click for PDF), lawyers the Authors Guild, the Association of American Publishers, and others asked Judge Denny Chin to delay a hearing on whether to approve the settlement while the parties work out the new terms of the settlement with the DOJ.

"Because the parties, after consultation with the DOJ, have determined that the Settlement Agreement that was approved preliminarily in November 2008 will be amended, plaintiffs respectfully submit that the Fairness Hearing should not be held, as scheduled, on October 7," the plaintiffs in the case said in a briefing. They said Google had given them permission to indicate that the company was not opposed to the motion.

The Open Book Alliance, a group of companies and organizations opposed to the settlement, declared victory.

"This is a huge victory for the many people and organizations who raised significant concerns that this settlement did not serve the public interest, stifled innovation, and restricted competition. It's also an enormous loss for Google, which had been saying for months that no changes were necessary to the settlement. Now, that settlement, as we know it, is dead," the alliance said in a blog post Friday.

In a statement, Google has this to say: "The plaintiffs moved for an adjournment of the final Fairness Hearing, currently scheduled for October 7. We are considering the points raised by the Department of Justice and others, and we look forward to addressing them as the court proceedings continue."

The parties had originally settled in October 2008, ending a dispute over Google's legal right to scan copyright protected out-of-print books. But the settlement gave Google the sole legal right to scan those books, raising anticompetitive fears and provoking strong opposition from authors, academics, privacy advocates, and some libraries.

Judge Chin had been scheduled to decide whether or not the settlement should go forward in a hearing at the U.S. District Court for the Southern District of New York. The parties asked for a November 9 status conference to discuss the modifications they plan to make to the settlement.

It's not clear whether Judge Chin will automatically approve the request. He could still hold the hearing as scheduled and make his own decision about whether or not to approve the settlement, although that seems highly unlikely given the recent developments, especially the involvement of the DOJ.

It's likewise not clear what types of modifications to the deal are being discussed. The DOJ's main objection to the deal was that "the Proposed Settlement seeks to implement a forward-looking business arrangement rather than a settlement of past conduct," which is not what class-action suits are designed to do, it said in a filing with the court last Friday. It is also concerned about potential violations of antitrust law, concerns that Google has grown accustomed to hearing with mounting government scrutiny this year.

The U.S. Department of Justice late Friday urged the court overseeing Google's book search settlement with authors and publishers to reject the settlement in its current form, although it strongly hinted that the parties are flexible on certain provisions.

"As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply," the DOJ said in a 32-page filing (click for PDF) with the U.S. District Court for the Southern District of New York. "This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 (a federal law governing class-action settlements) and the copyright and antitrust laws."

After Google was sued in 2005 for digitizing out-of-print yet copyright protected books by several groups representing authors and publishers, the parties settled out of court in October 2008. That deal granted Google sweeping rights to scan and display out-of-print books. Ever since the settlement was announced, opposition has mounted to what one University of California at Berkeley professor recently called "the largest copyright licensing deal in U.S. history." Opponents claim that Google and the plaintiffs overstepped their bounds in assigning the company the sole right to make digital copies of out-of-print books that are still protected by copyright law.

"The Proposed Settlement is one of the most far-reaching class action settlements of which the United States is aware; it should not be a surprise that the parties did not anticipate all of the difficult legal issues such an ambitious undertaking might raise," the DOJ wrote in its filing.

The DOJ has been looking into antitrust concerns stemming from the fact that Google and the nonprofit Books Rights Registry set up to handle payments to authors would have sole control over the pricing of institutional subscriptions to the digital library. But in its filing, it also raised questions about whether the settlement complies with Rule 23 of the Federal Rule of Civil Procedure as well as copyright law in general. "In the view of the United States, each category of objection is serious in isolation, and, taken together, raise cause for concern."

Still, the DOJ noted that a digital library of books holds important benefits for society, a point that has been repeatedly raised by Google's supporters, who argue that it would improve access to knowledge. It would appear that the DOJ, however, would prefer Congress settle the thorny issues of copyright laws that apply to orphan works--books whose rightholders cannot be located but which can be scanned by Google under the agreement--rather than making policy through legal settlements.

"As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome - the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status - is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement," the DOJ wrote.

Reaction to the DOJ's filing allowed parties from all sides of this issue to claim victory.

"The Department of Justice's filing recognizes the value the settlement can provide by unlocking access to millions of books in the U.S. We are considering the points raised by the Department and look forward to addressing them as the court proceedings continue," Google said Friday in a statement.

The Internet Archive, perhaps Google's most vocal opponent in this matter, was likewise pleased. "Despite Google's vigorous efforts to convince them otherwise, the Department of Justice recognizes that there are significant problems with terms of the proposed settlement, which is consistent with the concerns voiced with the Court by hundreds and hundreds of other parties," the Open Book Alliance said in a statement.

"This is a major agreement, and it is entirely appropriate for DOJ to look at a deal of this magnitude," said Ed Black, president and CEO of the Computer & Communications Industry Association, which has supported the settlement. "They are doing their job scrutinizing the competition aspects of this settlement."

And Consumer Watchdog, a strident opponent of the settlement, also found something to like in the DOJ's filing:

Consumer Watchdog supports digitization and digital libraries in a robust competitive market open to all organizations, both for-profit and non-profit, that offer fundamental privacy guarantees to users. But a single entity cannot be allowed to build a digital library based on a monopolistic advantage when its answer to serious questions from responsible critics boils down to: "Trust us. Our motto is 'Don't be evil.'"

Google will learn whether it has earned that trust from Judge Denny Chin on October 7 in New York. That is, unless the settlement is modified in the coming weeks, in which case we could be looking at several more weeks of debate.

Five state attorneys general have joined the opposition to Google's settlement with book authors and publishers, objecting to the way the settlement distributes unclaimed funds.

Missouri's top lawyer Chris Koster has joined the opposition to the Google Books settlement.

(Credit: Missouri Attorney General Chris Koster)

The attorneys general for Connecticut, Missouri, Massachusetts, Pennsylvania, and Washington joined the chorus of opposition to the settlement this week, filing briefs with Judge Denny Chin of the U.S. District Court for the Southern District of New York before the October 7 hearing to determine whether the settlement should be approved. The states involved are not pleased with the way the Books Rights Registry set up as part of the deal appears to usurp their ability to collect unclaimed payments on behalf of their citizens.

Under the settlement proposed by Google and several author and publisher groups, Google would be allowed to continue digitizing out-of-print but copyright-protected books and offer them--subject to rights holder approval--on Google Book Search. The company would then share a portion of the revenue earned from selling ads against those book search results, as well as links to book retailers with book rights holders, through the nonprofit Books Rights Registry.

The issue that irks the states is that when the rights holders can't be located, the Books Rights Registry would keep the proceeds on their behalf while they continue the search for those individuals or groups. Laws in the states objecting to the deal require the state treasurer to be the one who accepts an unclaimed payment on behalf of its citizens, according to a copy of the brief submitted by Missouri's Chris Koster.

Missouri said it objected only on that narrow issue and would not comment on the settlement in its entirety, but Connecticut Attorney General Richard Blumenthal also voiced concerns about potential antitrust matters, according to MarketWatch.

Google is reportedly talking with the Department of Justice about possible modifications to the settlement that could alleviate the Justice Department's concerns of the settlement, which has drawn intense scrutiny from various parts of the legal, technology, and publishing worlds.

A morning's worth of output from the Espresso Book Machine, which used Google Books as the source of the data.

(Credit: Tom Krazit/CNET)

Google is hell-bent on digitizing the world's books, but it's also aware that sometimes you just want to turn the pages.

On Demand Books, makers of the Espresso Book Machine, are expected to announce Thursday that they have been granted access to Google's library of public domain digital books for use with their product. The Espresso Book Machine can print a 300-page book in four minutes, complete with a cover and a bound edge. It ranges in price from $75,000 to $97,000, depending on the configuration, and is found mostly at universities, libraries, and institutions around the globe.

The machine has been around for a while, earning a "Best Invention of the Year" award from Time Magazine in 2007. And the concept of using smaller on-demand printers is also old: Barnes and Noble was playing around with the idea 10 years ago, and publishers have long wanted a system that would allow them to match book supply and book demand more closely.

A few companies, such as Lightning Source, a division of Ingram Content Group, have signed up with On Demand Books to help publishers get their content into the Espresso Book Machine, but adding Google's public domain library dramatically increases what is available through one of the machines, said Dane Neller, chief executive officer of On Demand Books. Around 2 million public domain works have been scanned by Google, while On Demand Books offers 1.5 million titles through its existing agreements.

One way of thinking about Google's Book Search project is that it creates opportunities for other companies to develop businesses around new ways of distributing and consuming books, since a digital book is nothing but a large file. While things like the Kindle show that people are interested in acquiring and reading digital books in digital form, the Espresso Book Machine allows authors and publishers to reach an audience that isn't ready for a digital book reader without having to spend the money required for a full-scale printing run of a book with limited appeal.

Of course, Google's participation in On Demand Books' service only involves public domain books, which don't inspire nearly as much controversy as the out-of-print yet copyright protected books at issue in Google's settlement with book authors and publishers. It's not clear whether if the proposed settlement is approved in October, On Demand Books (and other such publishers) will have access to those books; a Google representative said that would be "speculation" at the moment.

Correction, September 17: This post was updated to clarify Lightning Source's business model, and to fix incorrect information provided by On Demand Books as to the corporate parent of Lightning Source.