<http://www.time.com/time>
Wednesday, Jun. 17, 2009
Librarians Fighting Google's Book DealBy Janet Morrissey

Critics of Google's book-searching agreement with publishers and authors
were cheered last week when antitrust regulators in the Justice Department
set their sights on the search giant's publishing deal, demanding more
information.

"This is a monumental settlement that's at stake, and for the government to
show this kind of attention is heartening," says Lee Van Orsdel, dean of
university libraries at Grand Valley State University. "The increased
scrutiny on the part of the DOJ tells us that our concerns are resonating
far beyond the library community," concurs Corey Williams, associate
director in the office of government relations at the American Library
Association. (See pictures of work and life at
Google.)<http://www.time.com/time/photoessays/2006/inside_google/>

Goliath Google facing off against a legion of librarians and, possibly, the
U.S. Justice Department — now there's a fight.

Indeed, a deal that once appeared a sure bet for rubber-stamp approval is
now the target of angry opposition and intense regulatory interest, which
throw its future into question.

At issue is a $125 million settlement agreement reached last October that
gives Google the right to make millions of books available for reading — and
purchase — on the Internet. Under the pact, a Book Rights Registry will be
set up that will allow publishers and authors to register their work and get
paid for their titles through institutional subscriptions, ad fees and book
sales. Google will retain 37% of the revenue, with the remainder going to
the registry to be distributed to authors and publishers. The deal
effectively gives authors and publishers control over their work in the
digital world and pays them for it. For the public, it means easy
click-of-the-mouse access to millions of books that sit on dusty shelves in
university libraries across the country. (See the 100 best novels of all
time.) <http://www.time.com/time/2005/100books/>

The agreement, which must still get federal court approval, was aimed at
ending two lawsuits filed in 2005 against Google by the Authors Guild and
the Association of American Publishers. Basically, authors and publishers
had complained that the Web-searching king had broken copyright laws when it
scanned millions of books from university and research libraries and made
snippets of their content available online.

In a complex settlement agreement, which took three years to hammer out and
spans 135 pages excluding attachments, Google will be allowed to show up to
20% of the books' text online at no charge to Web surfers. But the part of
the settlement that deals with so-called orphan books — which refers to
out-of-print books whose authors and publishers are unknown — is what's
ruffling the most feathers in the literary henhouse. The deal gives Google
an exclusive license to publish and profit from these orphans, which means
it won't face legal action if an author or owner comes forward later. This,
critics contend, gives it a competitive edge over any rival that wants to
set up a competing digital library. And without competition, opponents fear
Google will start charging exorbitant fees to academic libraries and others
who want full access to its digital library.

"It will make Google virtually invulnerable to competition," says Robert
Darnton, head of the Harvard University library system.

Although competitors could scan orphans, they would not be protected from
copyright suits as Google is under the agreement. "They'd face lawsuits all
over the place," making the risk too big, said Darnton.

Without competition, pricing could go wild, critics claim. The registry,
which oversees pricing, is comprised of authors and publishers who stand to
benefit from high subscription fees. "There will be no incentive to keep
prices moderate," Darnton says.

The library community recalls with horror the pricing fiasco that occurred
when industry consolidation left academic journals largely in the hands of
five publishing companies. The firms hiked subscription prices 227% over a
14-year period, between 1986 and 2002, forcing cash-strapped libraries to
drop many subscriptions, according to Van Orsdel. "The chance of the price
being driven up in a similar way (in the Google deal) is really very real,"
she says.

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In a sign that Google has been listening to critics' complaints, it recently
signed an amended individual agreement with the University of Michigan,
adding a mechanism that would give the university the right to dispute a
price increase through arbitration. Any price discrepancy in the arbitrated
settlement would come from Google's 37% revenue stake, not from the authors'
and publishers' share. "That's a step in the right direction, but it only
benefits the University of Michigan at this point," says Williams.

Then there's the privacy issue. Google has the technology to track every
page and book a person reads, how long they spend on a given page and what
books they purchase. Yet the agreement makes no mention of how much of this
information will be collected or how it will be used. "That really flies in
the face of core principal library values of protecting patron privacy,"
says Williams. "This agreement is completely silent on the issue of
privacy." (Read "Why Google Wants You to Google
Yourself.")<http://www.time.com/time/business/article/0,8599,1893965,00.html>

Opposition to the deal has been escalating, with librarians, academics,
consumer advocates and even a few authors urging the federal court to either
scuttle the deal or at least amend it. The son and daughter-in-law of author
John Steinbeck as well as musician Arlo Guthrie are among the high-profile
critics. In May, the federal judge overseeing the matter extended the
deadline to Sept. 4 for people to offer comments and for publishers to opt
out of the deal.

In April, the Department of Justice launched its own investigation to see if
the deal broke antitrust laws. And this week, opponents were elated when the
DOJ appeared to step up its scrutiny by issuing civil investigative demands,
or CIDs, demanding additional information from Google and other parties.

But Google has its supporters. "I think a lot of [the criticism] has been
unfair and really ignores the benefits this provides," says Paul Aiken,
executive director of the Authors Guild. "We're talking about bringing books
to people on the Internet — making sure that books stay relevant in the
online age and that people have sources for facts that go beyond what's
available on Wikipedia."

Dan Clancy, engineering director at Google, dismisses suggestions the deal
will give Google a monopoly. He says orphans represent only a small
percentage of the overall books Google is dealing with, although he was
unable to say what percentage of the 10 million books Google has scanned
thus far fall into this category.

Clancy contends that the orphan-licensing agreement wasn't extended beyond
Google because it was part of a class action settlement pact, and other
companies weren't part of the suit. He supports efforts by Congress to pass
an orphan-works bill that would give everyone similar legal protection. (See
the top 10 fiction books of
2008.)<http://www.time.com/time/specials/2008/top10/article/0,30583,1855948_...>

On the matter of privacy, Clancy says Google will issue guidelines before
the program is rolled out.

Advocates remain upbeat that the deal will get a green light. "We believe
that we're on very solid legal ground to get this settlement approved," says
Michael Boni, a partner at Boni & Zack LLC, which represents the Authors
Guild. "So we're really not considering any doomsday scenarios at this
point."

However, attorney John Briggs, who isn't involved in the case, says the DOJ
clearly has concerns. "It's not routine for a settlement of a class action
like this to be getting scrutiny of any sort from the Department of
Justice," says Briggs, managing partner and co-chairman of the antitrust
group at Axinn, Veltrop & Harkrider LLP law firm. "I think it signals Google
is very much in the sight line of the Department of Justice."

Supporters warn it would be a huge blow to the publishing world if the deal
is scuttled.

"I think the publishing industry is under great stress trying to figure out
how to operate in a world where it's very easy to make copies of things and
to distribute copies of things — which is exactly the problem that the music
industry faced," says Paul Courant, dean of libraries at the University of
Michigan.

"I think it would be very bad for publishers and authors and the
digitization of information going forward if the settlement is not accepted,
even if it has to be adjusted in some way, shape or form," says Carolyn
Reidy, chief executive of Simon & Schuster, who was a party to the
agreement.

The federal court hearing is slated for Oct. 7.

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