February 6, 2010

Shadow Looms Over Google Books' Future

The Daily Online Examiner reports the following:

In late 2008, the Department of Justice threatened to file an antitrust lawsuit against Google unless it backed out of a deal to power search ads for Yahoo. Google agreed to nix the deal, leaving Yahoo to form a partnership with Microsoft instead.

Now, the DOJ might be getting ready to again flex its muscle with Google, this time to force the company to abandon ambitious plans to publish out-of-print books. The authorities argue in court papers that a proposed lawsuit settlement allowing Google to digitize and sell "orphan works" -- books under copyright whose owners can't be found -- would give the company an unfair advantage over competitors.

The DOJ said it was committed to working with Google, authors and publishers to reach a new settlement agreement, but it's not clear that any resolution will satisfy everyone.

Settlement critic and New York Law School professor James Grimmelmann tells MediaPost he believes the DOJ will be troubled by any resolution that allows Google to publish out-of-print books. Instead, Grimmelmann thinks the feds will push for a settlement that allows Google to continue to scan and index such books, but not publish them.

For Google, however, the right to publish out-of-print books is central to its plan to create a new book registry. And in a larger sense, it's also in keeping with the company's mission "to organize the world's information and make it universally accessible and useful."

Despite the DOJ's position, Google, authors and publishers might not be all that eager to return to the bargaining table. Grimmelmann, for one, thinks it's more likely that they'll appear in court on Feb. 18 and make their case to U.S. District Court Denny Chin. "They parties don't have much to lose from presenting their motion for approval to Judge Chin," he says.

Meanwhile the Authors Guild is defending the settlement on its own blog. In a post titled "To RIAA Or Not To RIAA." the organization says it didn't want to risk litigating the key question in the case -- whether Google infringed on copyright by scanning books and displaying brief snippets -- because Google might have convinced the court that doing so was a fair use.

"If we'd lost, it would then be open season on scanning of your out-of-print and in-print books," the group wrote. "All one would need is a scanner and a friend with a little bit of technical knowledge to start displaying 'snippets' at your science fiction, humor, Civil War, or Harry Potter website."

Still, that scenario could happen even with the settlement. After all, Yahoo, Amazon or anyone else can scan and index books and, if sued, can argue that they had a fair use right to do so.

The organization also says that even had it won, the victory might not have amounted to much. "Copyright victories tend to be Pyrrhic in the digital age," the group said.

Of course, that raises the larger question of why the Authors Guild sued at all. If the purpose all along was to create a new book registry, perhaps the group would have made better use of its funds by lobbying Congress for new laws rather than forging a lawsuit settlement that might never meet with approval.

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