Poised to create a court-approved monopoly in the digital book market, Google's $125m library-scanning settlement is under investigation by the US Department of Justice and possibly state attorneys general. But Google co-founder Sergey Brin has defended the company's pact with American authors and publishers, calling criticism of the deal "pretty short-sighted and contradictory."
In October, the company settled a lawsuit from the US Authors Guild and the Association of American Publishers, and if approved by the court the deal would hand Google - among other things - an eternal license to scan and sell and post ads against so-called "orphan works," books whose rights are controlled by authors and publishers who have ceased to exist or can't otherwise be located.
And this legal protection would apply only to Google. "Google will have permission to bring under its sole control information that has been accessible through public institutions for centuries," Internet Archive founder Brewster Kahle wrote in an editorial published earlier this week by The Washington Post. "In essence, Google will be privatizing our libraries."
Of course, Sergey Brin doesn't see the problem. In an interview with The New York Times, he said the settlement would allow Google to offer widespread access to millions of books that are largely hidden in university libraries. "We are increasing choices," Mr. Brin told The Times. "There was no option prior to this to get these sorts of books online."
Ah, but that's because no one else was willing to get themselves sued for multimillions of dollars.
Like Google, the Internet Archive has spent years working to digitize the world's library collections. To date, it has scanned over 150 million pages and put more than a million books online. Certainly, the organization advocates putting orphan works on the net. But it believes that right should not be limited to a single company. The orphan-works issue should be decided by government legislation, the Archive argues, not by a civil lawsuit.
"Scanning books and preparing them for discovering and presentation is not rocket science, and it's not that expensive," the Archive's Peter Brantley tells The Reg. "We would be delighted to digitalize [orphans] and make them available if we had legislation-afforded mechanisms by which we could do that - without fear of substantial liability. All we need is legislation."
From where Google is sitting, there's nothing stopping the Archive - or anyone else. Speaking prior the company's shareholders meeting earlier this month, Google senior vice president and chief legal officer David Drummond said that "anyone who wanted to go scan" books could "come up with a similar outcome," meaning anyone else could reach their own book settlement.
It's true. Anyone could follow in Google's footsteps. They could start scanning books without regard for copyright and hope for a legal onslaught from the world's authors and publishers. In this case, scanning books is extremely expensive. Some have questioned whether even the big names could foot the bill.
"Virtually the only way that Amazon.com, Microsoft, Yahoo!, or the Open Content Alliance could get a comparably broad license as the settlement would give Google would be by starting its own project to scan books," writes Pamela Samuelson, University of California, Berkeley law professor.
"The scanner might then be sued for copyright infringement, as Google was. It would be very costly and very risky to litigate a fair use claim to final judgment given how high copyright damages can be (up to $150,000 per infringed work). Chances are also slim that the plaintiffs in such a lawsuit would be willing or able to settle on equivalent or even similar terms."