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
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.”