Google turns up nose at ebook monopoly claims

How much is an orphan worth?


Stop! I think I see where we are getting confused. When you said "orphan," did you mean "orphan" - a person who has lost his parents - or "often," frequently? - The Pirates of Penzance

When the voices howl that Google is weeks away from securing a digital monopoly around orphaned books, Google doesn't quite hear what they're saying. Or maybe it does, and it's not letting on.

Google's Dan Clancy hears the overtones. Accused of using a civil court case to secure exclusive rights to the orphans - copyrighted books whose rights holders can't be found - he jokes that he'd rather not be seen as the Miss Hannigan of the digital book world. "Of course, no one wants Google to monopolize the poor orphans," says Clancy, the engineering director of Google Book Search, the web giant's library-scanning project/controversy lightning rod. "And I don't want to be - what's the woman in Little Orphan Annie that runs the orphanage? I'm blanking - I don't want to be her."

But he doesn't seem to hear the argument. When the voices complain that Google has approached the orphan-works issue in precisely the wrong way, Clancy responds by saying that if they wanted to, anyone else could take the same approach. Google likes to accuse its Book Search critics of contradictory logic. But surely, there's a contradiction at the heart of its own argument.

Last week, Dan Clancy turned up at Silicon Valley's Computer History Museum as part of a bi-coastal effort to buff the image of his digital book project. Naturally, he spent much of the evening defending Google's $125m settlement with American authors and publishers.

In October, Google settled a lawsuit from the US Authors Guild and the Association of American Publishers over Book Search - née Google Print - a project that seeks to digitize the works inside the world's libraries. The settlement creates a "Book Rights Registry" where authors and publishers can resolve copyright claims in exchange for a predefined cut of Google's revenues. And in eye-opening fashion, it also gives Google a unique license to digitize and sell and post ads against so-called "orphan works," books whose rights are controlled by authors and publishers who have yet to come forward.

The settlement still requires court approval, and as the court seeks input from interested parties, many have questioned whether the pact gives Google an unhealthy level of control over the future of digital books. That includes the US Department of Justice, which recently confirmed an official investigation into the matter.

For Brewster Kahle - founder of the Internet Archive, which runs its own book-scanning operation - the settlement will create not one but two monopolies. Google will have its monopoly on orphans, he says, and the Book Rights Registry - funded but not solely controlled by Google - will have a second monopoly, one that encompasses all rights holders who agree to join.

"Google will have permission to bring under its sole control information that has been accessible through public institutions for centuries. In essence, Google will be privatizing our libraries," Kahle wrote in a recent editorial.

"Google would get an explicit, perpetual license to scan and sell access to these in-copyright but out-of-print orphans...No other provider of digital books would enjoy the same legal protection. The settlement also creates a Book Rights Registry that, in conjunction with Google, would set prices for all commercial terms associated with digital books."

As the critics howled, Google insisted that the settlement was no way a Google exclusive. Prior to the company's annual shareholders meeting, chief legal officer David Drummond barked back that "anyone who wanted to go scan" copyrighted books could "come up with a similar outcome," meaning they could get themselves sued for copyright infringement and negotiate their own settlement.

But this argument only highlights the fact that not everyone believes Google's way of solving the issue is the right way. "The right way to gain access to orphan books is to not break the law while you are doing it," the Internet Archive's Peter Brantley tells The Reg, "to work through Congress to ensure that the people's voice in copyright is articulated the way the system was designed to work - not through a private, secret deal that we're assured is in our best interests by Google. No one elected Google to write copyright law for America."

During Thursday night's chat at the Computer History Museum, a week after holding a similar talk at the Boston Public Library, Dan Clancy continued to play Drummond's card, explaining that anyone who has a problem with Google stretching the boundaries of copyright should stretch the boundaries of copyright themselves.

"Under the agreement, it is the fact that if you can't find the rights holder, then it's difficult for someone else to take advantage," Clancy says. "But it's not because of the agreement. The agreement is completely non-exclusive. It allows anyone to do exactly the same thing we're doing."

Google believes it has the fundamental right - under the US fair use doctrine - to scan copyrighted works and index them online. So much so, it sees no reason why any other ebook outfit wouldn't feel the same way.

Which is not to say that Google expects anyone to run out and get themselves sued. There's little reason to do so, Clancy says, because the orphans are close to worthless.

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