Google’s court settlement in the United States that could allow the search engine giant to sell scanned books online is increasingly coming under fire prior to the final hearing in the matter next month. Government entities and groups in the United States and in Europe that oppose the settlement could, at the very least, temporarily derail Google Book Search, according to sources.

[Note: The US Justice Department filed views on the settlement late on 18 September, available here [pdf].]

“I think the settlement could be in serious trouble, given the array of filings with the court,” Fred von Lohmann, a staff attorney for the Electronic Frontier Foundation (EFF). “But it’s difficult to predict outcomes at this stage.”

At issue is an agreement completed last October to settle a class-action lawsuit filed by Authors Guild and the Association of American Publishers, which claimed Google Book Search, which represents the world’s most ambitious book-scanning project to date, violated copyright laws and other related protections. Under the terms of the October 2008 settlement, Google agreed to pay $125 million and to compensate right holders 63 percent of revenues earned on sales of millions of books it has scanned as part of the commercial venture.

A major point of contention in the settlement involves how authors’ and copyright holders’ books are scanned without their prior consent for paid access. While copyright holders of out-of-print books that are partially displayed and sold can have their works removed from Google Books, their inclusion by default is one of the ways that Google’s program is illegal in the eyes of many.

Google raised the stakes of the settlement by announcing yesterday that it has formed a partnership with US-based On Demand Books (EBM) that it said will give users the option to print out 1.5 million public domain books available through Google’s search engine with EBM’s printer. According to EBM, the printer, which retails for $75,000 and is only available in the United States, United Kingdom and Australia, can print and bind a book for about US $0.01 per page.

Google has always maintained from the outset that its Google Book project merely offers a unique yet legal access to millions of out-of-print or so-called “orphaned books.”

“The settlement will enable Google to make certain uses of abandoned books. So far we are the only company that has sought to digitise in-copyright, potentially orphaned books,” Google’s David Drummond, senior vice president of corporate development and chief legal officer testified earlier this month before the US House of Representatives Judiciary Committee. “We believe anyone who wants to re-use abandoned works should have a fair, legal way to do so. In our view, the settlement helps here, too.”

However, Marybeth Peters, the United States register of copyrights, said during her testimony last week before the US House of Representatives Judiciary Committee, that Google’s agreement violates copyright-protection norms and laws in a number of ways. “Although Google is a commercial entity, acting for a primary purpose of commercial gain, the settlement absolves Google of the need to search for the rights holders or obtain their prior consent and provides a complete release from liability,” Peters said.

[Paragraph updated:] Following Peters’ testimony, the US Justice Department, which is also investigating the Google settlement, filed a brief late Friday asking the federal court judge to reject some of the terms of the agreement due to issues relating to federal civil procedure, copyright, antitrust, and other laws.

Peters also objected to how, according to her office, the settlement covers areas of the law reserved for the legislative process. “The settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress,” Peters said.

Also before the House of Representatives Judiciary Committee, Paul Misener, vice president, global public policy for Amazon.com, said the settlement would give Google an illegal monopoly in the digital book market.

Others in favour of the settlement include Marc Maurer, president of the National Federation of the Blind in the United States, who before the committee heralded the settlement as an opportunity to give people who are visually impaired “greater access to books than we have ever had in human history.” While dismissing the legal and competitive concerns of those opposed to the settlement, Maurer said the project would “bring the printed word to as many as 30 million people who currently have limited access to it.”

Meanwhile, Peters did not disagree with all of the settlement’s terms. She applauded, for example, how Google Book Search would offer visually-impaired readers access to out-of-print books through enhanced screen applications and electronic Braille technologies. She also approved of the terms that would form the basis of a rights registry for book authors and copyright holders and the possibility of online advertising revenue opportunities for other companies besides Google.

However, given that the settlement only applies to US copyright law, Peters also said the agreement infringes on the legal protections of a substantial percentage of copyright holders residing outside of the United States, where different copyright laws apply.

European Efforts

Indeed, a number of special-interest groups in Europe have expressed concern over the settlement since last year, ranging from the Booksellers Association of the United Kingdom and Ireland to the European Commission, which hopes that digital library Europeana will serve as a viable alternative (IPW, Copyright Policy, 28 August 2009).

Earlier this month, the European Commission began a series of hearings attended by European Union member state representatives, book copyright-holders, and other groups as well as Google executives to discuss both the search engine giant’s book scanning plans in Europe as well as the Google settlement. While many of the groups participating in the hearing oppose the search engine giant’s book-scanning project, the European Commission stopped short of condemning the settlement. The final outcome of the hearings is pending.

Also in Europe, the justice department of the German government has filed a complaint (summarised here) with the New York federal court handling the settlement, contending that the agreement violates German copyright law.

Indeed, Google’s project and the settlement violate substantive copyright law in countries throughout the European Union, according to Philippe Gillieron, an attorney with Switzerland-based Bianchi, Carnice, Christin and de Coulon. “Unlike the US Copyright Act, European legislations do not have an open exception such as the ‘fair use’ concept that would enable Google to try and argue that its scanning, in particular of out of print publications, would serve the public interest and amount to a fair use,” Gillieron said.

In France, for example, copyright holders have valid claims against Google’s intentions to scan and sell their works without their prior approval, said Nicolas Maubert, a Paris-based attorney said, who specialises in IP, media, and telecommunications law. “It is just unconceivable, at least from a French law viewpoint, to force a right holder to publish a literary work in a format that he or she has not expressly agreed upon in writing,” Maubert said. “Publishing without such express authorisation amounts to an act of counterfeiting.”

But in the United States, many groups, while opposed to some of the terms of the settlement, support the project in general. The Center for Democracy and Technology (CDT), EFF, and American Civil Liberties Union (ACLU), for example, support Google’s project, but have expressed privacy concerns in briefs submitted to the federal court that is overseeing the settlement. They have described contingencies where users’ book-reading and -buying habits could be traced and used against them without their consent or knowledge by private companies or the government.

“Most agree that the settlement has plenty of promise, but that it can’t be approved so long as it lacks all privacy protections,” said von Lohmann, the EFF staff attorney.

However, even if privacy protections were added, Google’s project would likely still face opposition, von Lohmann said, adding, “If those problems were fixed, I’m not sure where all the public interest organisations would come out.”