It’s Not Just Microsoft That’s Balking at Google’s Book Plans
By Miguel HelftUpdated 10 a.m. Added reference to Consumer Watchdog.
Earlier this week, Google’s public relations team sent around to reporters a story from Wired suggesting that Microsoft was behind the opposition to its sweeping settlement with book publishers and authors over its book scanning project. I covered a focal point of the opposition to the agreement, the concerns over Google’s virtually exclusive license to millions of so-called orphan books, in Saturday’s Times.
There’s no question that Microsoft has made it a mission to cause trouble for Google in Washington. And the Wired article noted that Microsoft is helping to finance research on the books settlement at the Institute for Information Law and Policy at New York Law School.
That said, plenty of others besides Microsoft are concerned about the settlement. The issues were raised most visibly by Robert Darnton, the director of the Harvard University library system, in a lengthy essay in the New York Review of Books in February. For those interested in more details, Professor Darnton’s article is worth a read, as are some of the responses, which include a defense of the agreement by Paul Courant, dean of libraries at the University of Michigan.
Others who have publicly expressed concerns include prominent and independent intellectual property and antitrust experts, including Pamela Samuelson, a law professor at the University of California at Berkeley and co-director of the Berkeley Center for Law and Technology, and Jane Ginsburg, a professor at Columbia Law School, which recently held an all-day conference where the settlement was debated. At the conference, Randall Picker, a professor at the University of Chicago Law School, said he saw potential antitrust problems with the settlement. His slides are available here.
Also at the conference, Marybeth Peters, the United States Register of Copyrights, called the agreement “a compulsory license for the benefit of one company.” More coverage of the Columbia debate is available on the LibraryLawBlog here and here.
Librarians, represented by the American Library Association, the Association of Research Libraries and the Association of College and Research Libraries, have raised a different set of issues. In a joint amicus brief, they plan to voice a range of concerns, from the cost of library subscriptions for Google’s book service, to what they say are a lack of guarantees that Google will not monitor the reading habits of library patrons. Alexander Macgillivray, the lead lawyer representing Google in negotiations, said Google “would be mindful of privacy” in designing its library products.
The dilemma for many of the critics is that virtually all agree that the settlement does a lot of good, and they don’t necessarily want it struck down. Google’s book scanning project will bring new life to millions of out-of-print books, making them available at libraries across the country, and potentially providing a new source of revenue for authors and publishers, as my colleague Motoko Rich described earlier this year.
Even James Grimmelmann of New York Law School’s Institute for Information Law and Policy, one of the most vocal critics of the agreement, wants the settlement to be approved. In an amicus brief, however, he will ask the court to slow down the approval process and solicit advice from the Justice Department and the Federal Trade Commission, and will say that it should appoint someone to represent the interests of orphan works. (Prof. Grimmelmann, as well as Microsoft, insist that Microsoft’s funding of the institute’s research on the book settlement doesn’t influence its conclusions. Prof. Grimmelman first detailed his concerns in November, months before Microsoft began backing the institute.)
Representing orphan works, and the public’s interest in that vast swath of books, is precisely what a group of lawyers led by Professor Charles Nesson of Harvard Law School are hoping to do, with a petition to intervene in the case that they plan to file next week.
Google, as well as the Author’s Guild and the Association of American Publishers, have strongly defended the agreement. Google describes its terms and benefits here.
And in a letter sent last week, Consumer Watchdog, a public interest group in Southern California, has asked the Justice Department to intervene in the case to “bring about changes that will truly serve the public interest.”
Mr. Macgillivray, who listened to critics — as well as supporters — for hours at the Columbia conference, said he wasn’t terribly surprised that the complex 134-page agreement had sparked a lot of concern.
“This is a deal that was negotiated with various parties that don’t typically get along,” he said. “I don’t think it is perfect from the perspective of any of the people who negotiated it. It is not surprising that other people had issues with it.” He later added: “I do think it is a tremendous improvement from where we are today.”
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