The US Department of Justice has urged a District Court to reject a court settlement that would see Google scan and publish the content of millions of out-of-print and out-of-copyright books online.
The move was welcomed by internet giants Microsoft and Amazon, both members of the Open Book Alliance, which argues the settlement could rewrite existing copyright laws.
“This court should reject the proposed settlement in its current form and encourage the parties to continue negotiations to modify it,” the department’s submission read. “The public interest would best be served by direction from the court encouraging the continuation of those discussions.”
The controversy began last year when a settlement was reached in the US District Court between Google, the Authors Guild and the Association of American Publishers, regarding Google’s intentions to set up an online book registry.
The company plans to scan and publish the content of millions of books online, but was opposed by several publishing houses and internet companies.
Microsoft, Amazon and Yahoo! have all publically opposed the settlement, with Silicon Valley competition lawyer Gary Reback earlier this month making a plea to the US Federal Court to stop the deal from going ahead.
The Department of Justice did not totally reject the settlement, writing that it has “the potential to breathe life into millions of works that are now effectively off limits to the public”. But it has said the settlement “raises legal concerns”.
The settlement would see Google pay $US125 million in order to pay outstanding copyright claims and establish an independent “Book Rights Registry”, which would deliver 63% of revenue earned to authors and publishers who enter agreements to “digitise” their content.
But while the deal allows rights holders to opt out, Google can scan and publish the content of “orphan works” (books that are out of copyright or where the rights holder cannot be located) without dealing with any copyright issues straight away.
Additionally, if any out-of-print copyright holder doesn’t come forward within five years of having their content published, any money earned from that work’s sale is used for upkeep of the registry and distribution among the registry’s rights holders.
The Justice Department argued Google has no financial incentive to track down the authors of these orphan works, or any other work whose author cannot be located, and also stated competitors would not be able to launch similar ventures.
While Google has stated that owners of orphan works will have an incentive to make themselves known in order to earn money, the Department rejected that conclusion.
“[Since] the structure of a settlement agreement creates a conflict among known and unknown class members, a court cannot ignore or excuse that conflict based on an untested hypothesis that economic incentives will operate to obviate the conflict,” it said.
Instead of the current proposal, Google should look at making out-of-print books “opt-in” rather than “opt-out”, the same method used for in-print books. It also suggested the funds earned from orphan works should be channeled towards the search for rights holders.
“This would put the out-of-print rights holders and in-print rights holders in the same situation and respond to a significant concern expressed by foreign rights holders.”
While Google’s book registry will only be available to US users, the plan has been blasted by writers and publishers in Europe, who want better safeguards for European works.
In Australia, Australian authors and publishers who hold US copyrights worldwide can register their works with the Book Rights Registry that will govern the settlement and receive compensation from institutional subscriptions, book sales, ad revenues and as a cash payment if their works have already been digitised.
The Australian Society of Authors has been running presentations to help members decide on whether to opt into or out of the settlement.
The Open Book Alliance released a statement supporting the submission, in which it said the group “is pleased with the action taken today by the Department of Justice, which we believe will help to protect the public interest and preserve competition and innovation”.
A hearing on the settlement will be heard on 7 October.
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
