Fending criticisms from multiple parties, Google once again made the case for digitizing millions of orphaned books before the U.S. District Court Southern District Court of New York, in a fairness hearing held Thursday.
A total of 27 different parties requested to speak before the court. Five were in favor, including Sony, the National Federation of the Blind and the Center for Democracy and Technology. The rest — 22 in total — opposed the settlement, including Amazon, Microsoft, the Open Book Alliance, and the Electronic Privacy Information Center.
Those in favor praised the idea of rendering hard-to-find books in electronic form, because they could be accessible to a much larger group of readers, and not be lost to the ages.
The court will decide whether or not approve a proposed settlement to a class action suit waged by a number of author groups towards Google, for its actions of scanning out-of-print books.
U.S. District Judge Denny Chin, presiding over the proceedings, said that he would not reach a decision at the end of that day’s fairness hearing, given the amount of feedback the court received.
The settlement, reached in October 2008, came out of a 2005 lawsuit brought about by the Authors Guild, the Association of American Publishers and other groups of concerned writers and content producers.
The groups expressed outrage that Google was scanning millions of books, an act which they felt violated U.S. fair use rights. The company was planning to offer snippets of the books as part of their search results.
The resulting settlement allows Google to scan books that are still in copyright yet are out of print, provided that it sets up a registry of authors and book titles, and makes an effort to notify authors of these books that their works are being reused.
In exchange, the company can then offer snippets or even fully downloadable versions of the books for a fee, from which they would pay the authors a percentage of the profits. Authors would be free to opt out of the program.
Reacting to U.S. Department of Justice antitrust concerns, the parties revised the settlement and resubmitted it to the court in November, narrowing the scope of the agreement to U.S. books.
Despite the revisions, the Justice Department voiced concerns. Deputy Assistant Attorney General William Cavanaugh, who argued the settlement’s opt-out approach preempts copyright law insofar that copyright law grants the copyright holders full control over how their works can be published.
The proposed settlement “eviscerates the right to prior approval,” Cavanaugh said.
This view was echoed by others. The settlement, in effect, allows Google to continue to infringe copyright law in the future by not obtaining prior approval, said David Nimmer, a representative for Amazon.
Google attorney Daralyn Durie argued that the opt-in approach would not work for the company, and so it is a non-negotiable part of the settlement.
Her reasoning was that Google cannot tell which of the out of print books will prove to be popular once made digitally available again, so finding each author and persuading him or her to be opt-in would be too cost-prohibitive, she said.
She added that Microsoft tried this opt-in approach and has since given up on its efforts.
Durie estimated that there are about five million books in U.S. libraries that are out of print but still under copyright. In many cases the authors cannot be located, making them orphaned books.
A variety of other criticism were also raised: Thomas Rubin, a Microsoft intellectual property strategy attorney, noted that the settlement gives Google an unfair advantage within the search industry, as it hands the company rights to digitize up to 147 million out-of-print books for its own search results, while other search companies would still need to procure the reproduction rights on a case-by-case basis.
Representatives from the Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT) and the Electronic Privacy Information Center EPIC) all voiced concerns at how Google could track what books people read, right down to the particular page numbers.
U.S. libraries have been fierce protectors of people’s privacy in terms of not divulging what books their patrons check out, said Marc Rotenberg, executive director of the Electronic Privacy Information Center. Because Google is a commercial enterprise that makes money by profiling users for advertising, readers could not expect the same level of anonymity, he said.
While the CDT and EFF offered a number of suggestions of how Google could put privacy controls into place that alleviate these concerns — such as limiting the time Google would hold onto the tracking data — Rotenberg maintained that the conflict-of-interest would just be too great to mitigate.
Not all companies were opposed to the settlement. Janet Cullum, representing Sony, said that the proposed registry would open a wider array of material for the electronic book market, being as how the registry will allow companies other than Google to track down authors and make their own arrangements.
Marc Maurer, president of the National Federation of The Blind argued that the settlement would be “good news for the blind,” insofar that it could make a vast number of previously unavailable texts accessible, through the use of assistive technologies. This is a market now only served partially by the commercial market, he said.
Paul Courant, a librarian for the University of Michigan, noted that the digitization process could preserve countless academic and historic texts that are in fragile states and only available in a few libraries.
Cavanaugh and others agreed that digitizing such books would be a good thing, though ultimately it would be up to Congress to amend copyright laws to make provisions for preemptive projects such as Google’s, rather than it being handled in a class action lawsuit settlement.
“You cannot use procedural rules to modify rights,” he said.
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