Google Book Project Tries to Placate the Critics: Will It Be Enough?

What emerged was an agreement that expressly authorized Google to keep copying books without the remotest connection to the University of Michigan library, such as books never published in the United States but included in the collections of other U.S. universities.

The Original Settlement authorized Google to make books available in a variety of commercial contexts, provided that the bulk of the profit was given to a newly formed “Book Rights Registry,” which would distribute the funds to (or for the benefit of) authors and publishers. For example, out-of-print books could be made available in their entirety in the form of .pdf downloads for a fee. The Original Settlement also authorized Google and the Registry to agree upon future forms of commercialization not specifically mentioned in the Original Settlement.

The Original Settlement promised to facilitate the creation of an almost limitless resource of writing that some have compared to the ancient library of Alexandria. As with all projects of enormous scope, it has its share of detractors. In recent months, those detractors have been joined by Marybeth Peters, the U.S. Register of Copyright, who appeared before the House Judiciary Committee on September 10, 2009, and delivered a statement critical of the Original Settlement.

The focus of her criticism was the broad sweep and intricate detail of the Original Settlement, which struck her as resembling legislation more than a private agreement, and therefore the business of Congress, not a federal district judge approving a class action settlement. More specifically, she objected that the Original Settlement:

* Included books that had not been scanned when the lawsuit was initiated;
* Had the effect of a compulsory license, something rarely granted by Congress and then only after public hearings and lengthy public deliberation;
* Implicated U.S. treaty obligations, which are not the domain of either Google or the district court to modify. She noted that both Germany and France had filed objections in the court proceedings, citing possible treaty violations; and
* Authorized copying far beyond the snippets originally contemplated in Google’s December 2004 press release.