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Google goes for broke

7 September 2009

After a slow start, objectors have finally been getting their arguments against Google's plans in before the closing date of last Friday, 4 September.

It's ended up being a powerful coalition of authors' organisations, lawyers and now some governments, all of which are opposing Google's plan to digitise vast numbers of titles unless authors object individually.

For those of you who have lost the plot - and no wonder, it's extremely complicated and in some ways quite incredible - here's where we're at. The Google Book Search Settlement is an attempt by Google to set itself up so that it can digitise vast numbers of books and in due course sell the digitised versions. Authors and other rights-holders would have to object and withdraw their books individually if those titles are to be excluded.

At first it looked as it the reaction was rather muted, prompting the fear that Google might even get away with what seems to many just a terrifically audacious rights grab which would put the company into a dominant position globally as regards book material. But now Amazon, Microsoft and Yahoo are planning to join a coalition of non-profit groups, individuals and library associations, tentatively called the Open Book Alliance, to oppose the Settlement. Scott Gant, a US antitrust lawyer who is an author, filed a 50-page objection claiming that the proposed deal is an illegal expansion of class-action law.

The Alliance plans to make a case that the arrangement is anti-competitive. Their lawyer, Gary L Reback, said: 'This deal has enormous, far-reaching anti-competitive consequences that people are just beginning to wake up to.' It's claimed that it would vest Google with significant market power which it could not acquire without the Settlement and that it raises serious antitrust issues that must be considered as part of the Court's review of the Proposed Settlement.

Gant's most damaging argument, however, is that the settlement fails to safeguard the due process rights of absent class members as required by law... a potentially fatal blow to the settlement, because if upheld by the court, it would remove a critical foundation of the deal, under which Google would essentially obtain a license to works without the specific consent of the copyright holder. He will be involved as a class action member.

Publishers' Weekly carried out a survey which showed general indifference to the threat of the Google Settlement and concluded: 'For us, the survey highlights a fundamental question: for all the good and bad scenarios raised by the deal, was it ever reasonable to think that such a revolutionary, unprecedented pact, negotiated in secret over three years by people with loose claims of representation, concerning a wide range of stakeholders, both foreign and domestic, involving murky issues of copyright and the rapidly unfolding digital future, could be pushed through as a class action settlement within a period of months, in the teeth of a historic media industry transition?'

Objections have come from all over the world. A group representing approximately 100 Japanese publishers objected earlier in the summer but this week there was a wave of similarly-reasoned filings from a variety of publishers and publishers' associations in other parts of the world: Sweden's Norstedts (with potentially 20,000 out of print titles), Studentlitteratur, and Leopard; Germany's Harrassowitz; and South African holding company Media24 (with approximately 15,000 out of print titles) filed in opposition, as did the Booksellers' Association in the UK, and the publishers' associations in Germany, Austria, France, Switzerland, and Sweden. US attorneys for the Federal Republic of Germany filed a long challenge to the agreement, saying it 'cannot adequately and fairly represent' German authors and publishers (neither of whom are allowed to join the Authors Guild or the AAP in the States.

So it looks as if the Settlement will be thrown out and Google will have to rein back on its plans. Or maybe not? The Chronicle of Higher Education has an article by Geoffrey Nunberg of the University of California at Berkeley. He demonstrates how Google's poor use of metadata for its scanned books will make work extremely difficult for scholars who need to search the book database: 'it's so disappointing that the book search's metadata are a train wreck: a mishmash wrapped in a muddle wrapped in a mess'.