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Tech Report – Google and the World of Books

After a flurry of last minute filings, a federal judge now has the unenviable task of considering how the proposed Google Books Settlement Agreement will affect competition, authors' rights and readers' privacy. The Court will decide whether to approve the Settlement at a Fairness Hearing to be held on October 7, 2009.

The settlement agreement was reached after the Authors Guild and the Association of American Publishers sued Google in 2005, citing "massive copyright infringement" related to its Google Books Library Project.  The Project is an effort by Google to scan and make searchable millions of books from the collections of several major libraries, including Harvard University, New York Public Library, Stanford University and the University of Oxford in England.

Google originally responded that it was complying with "fair use", a doctrine under United States copyright law that allows limited use of copyrighted material without requiring permission from the rightsholders. That claim will be one of many left unresolved if the Settlement is approved and the original suit stays out of court.

Although the Settlement provides a clear action plan for identifiable U.S. copyright holders (there is a web site where they can file claims or opt-out of the ongoing Library Project), there are numerous other issues that remain unclear. At the heart of the controversy are the millions of "orphan books" – books for which there are no clear rightsholders because an author has died with no identifiable heirs or a publisher has gone out of business.

The negotiated agreement will give Google the right to show a preview of any orphan book, as well as the right to sell electronic access to the entire book at a price to be determined by Google. Google gets to keep 37% of the proceeds, while 63% will go to a new not-for-profit entity, the Books Rights Registry, which will distribute the funds for the benefit of the writing and reading public.

Other objections have come from overseas, where authors believe that the U.S. publishers have effectively negotiated away their worldwide rights, and more predictably from companies like Amazon, Microsoft and Yahoo, where they believe the agreement gives Google too much of a competitive edge. The fact that Google has devoted 6 years and untold millions in bringing its Library Project to where it is today – over 7 million books scanned – is clearly a double-edged sword.  A company's vision and its willingness to invest are not much of a defense when it comes to anti-trust considerations.

Whatever the outcome of the Fairness Hearing, it's unlikely that Google's inevitable march to digitize the world of books will be slowed down anytime soon. They already have millions of books available online through Google Books, and their Partner Program clearly establishes Google as one of the good guys of the literary world, encouraging new and emerging authors to market and sell their books through Google, all the while making sure that their rights are protected!

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