October 7, 2009
In E-Books, It’s an Army vs. Google
By MIGUEL HELFT

SAN FRANCISCO — Whenever it can, Google likes to have programmers solve its problems. But now it faces a dispute that even its ranks of lawyers and lobbyists are finding hard to smooth over.

A broad array of authors, academics, librarians and public interest groups are fighting the company’s plan to create a huge digital library and bookstore. Their complaints reached the ears of regulators at the Justice Department, which last month helped derail the plan by asking a court to reject the class-action settlement that spawned it.

That request led to a last-minute decision by Google and its partners, the Authors Guild and the Association of American Publishers, to redraft the agreement. A federal court hearing in New York on Wednesday will shed light on their progress.

Some analysts say the broad-based opposition to Google’s lofty plans was unprecedented and a harbinger of the intense scrutiny the company’s ambitious agenda will face.

“This was the first issue through which Google’s power became clearly articulated to the public,” said Siva Vaidhyanathan, associate professor of media studies and law at the University of Virginia. “All sorts of people — writers, researchers, librarians, academics and readers — really feel they have a stake in the world of books.”

Google expressed confidence that a new agreement that could win court approval might be ready within weeks. “I don’t think we need a lot of time,” said David Drummond, Google’s chief legal officer.

This is not the first time Google’s ambitions have collided with the Justice Department. Last year, after advertisers and competitors argued that a planned ad deal with Yahoo would harm competition, the department said it would try to block the partnership in court. Google chose to abandon the deal rather than fight.

This time, the department’s lawyers heard from Google rivals like Microsoft. But they also heard complaints from a much broader group, many of whom shared the same fear: that the deal would allow Google, the 800-pound gorilla of digital information, to bulk up even more and lock out competitors in the nascent digital book market.

In a recent order, the judge who will have to approve or reject the settlement remarked on the number and breadth of objections the court had received. “Clearly, fair concerns have been raised,” wrote Judge Denny Chin of the United States District Court for the Southern District of New York.

The Justice Department told the court that it hoped the parties would be able to modify the agreement to address antitrust, copyright and class-action problems, while preserving some of its benefits.

Some experts say that even if a modified deal is approved, the dispute portends the kind of suspicion that Google’s plans will likely face.

“Google will have continuous challenges to major initiatives around consumer choice, security and trust, privacy,” said David Yoffie, a professor at the Harvard Business School. “This will never stop. It will be a question of how well Google builds coalitions and lays the groundwork before they establish a fait accompli in a particular area.”

Google’s plan emerged from a sweeping settlement of a class-action lawsuit filed by authors and publishers in 2005 over the company’s effort to digitize books from major libraries. Google and its allies hailed the agreement as a public good: millions of out-of-print books would become widely available, unlocking vast swaths of human knowledge, while giving authors new ways to earn money from digital copies of their works.

While Google’s corporate rivals fanned the flames of opposition, much of the resistance to the deal began in the confines of academia and spread gradually. In the end, more than 350 individuals, companies, nonprofit groups, academics, library associations, overseas publishers, states and even foreign governments lodged complaints in court against the agreement, in whole or in part. They outnumbered the filings in support of the deal by about 10 to 1.

Many scholars initially sided with Google in 2004 when its scanning project, originally designed to create a kind of universal card catalog, drew lawsuits from the Authors Guild and the Association of American Publishers. But the settlement transformed Google’s plan into something far more ambitious.

Online users of Google’s digital library and store would get free access to 20 percent of any book and be able to pay to read the rest. Every library in America would be able to offer free, full access to Google’s library at one terminal. And universities would be able to purchase access to the entire collection. Revenue would be split among Google, authors and publishers.

Even before the agreement was signed last October, however, opposition began to brew. Harvard University, which along with a few other libraries had been invited to participate in some of the negotiations, withdrew. A few months later, Robert Darnton, head of the university’s library system, wrote an impassioned attack on the deal in The New York Review of Books.

Around the same time, Pamela Samuelson, a respected Internet law and copyright expert at the University of California, Berkeley, convened a meeting of concerned scholars who began spreading the word at universities.

At a conference at Columbia Law School in March, the outlines of the opposition began to emerge. Critics said the deal would grant Google quasi-exclusive rights to commercialize millions of orphan works, books whose rights holders are unknown or cannot be found. That would make it hard to compete with, potentially leaving Google free to raise prices.

Others said the deal turned copyright law on its head by letting Google profit from millions of books unless authors objected. Librarians grew concerned that Google wouldn’t adequately protect their patrons’ privacy.

Gail Steinbeck, the daughter-in-law of John Steinbeck, received notice of the settlement shortly before a May deadline for authors to opt out. She thought most authors would not understand it.

“When I saw this come through, just a few weeks before the deadline, I flipped out,” said Ms. Steinbeck, who along with her husband has been involved in a legal fight over the rights to some of John Steinbeck’s works.

Ms. Steinbeck quickly sent a letter to several influential authors laying out her fears. “It would be a shame to have to go back to Congress and/or the courts in a few years to ask them to split up a monopoly, when we have the chance to stop it in its tracks right now,” she wrote.

As a result, a group of authors that included the musician Arlo Guthrie asked the court for a four-month extension, which was granted. The delay proved crucial, as it gave time for opponents to get organized, leading to a veritable deluge of last-minute filings.

Lawrence Lessig, an Internet scholar and professor at Harvard Law School, said Google’s belief that its actions and motives were misunderstood reminded him of a frustration that permeated Microsoft in the 1990s.

“I’ve seen these big powerful companies filled with people who drank the Kool-Aid,” said Professor Lessig, who initially supported Google’s scanning but later came to oppose the settlement. “I really get the sense in which these people feel they are doing good. But I am always surprised by their failure to recognize how they will be perceived outside.”

Mr. Drummond said Google anticipated that a deal so sweeping would generate criticism. He said support for it was far broader than the opposition, noting that the guild and the publishers association represented a large portion of the American book industry.

“The benefits far outweigh any of these criticisms that are being made, many of which are quite theoretical,” Mr. Drummond said. “We have a good process now for taking into account some of the objections.” He added: “The fact that there are some critics doesn’t mean you should be paralyzed and not do something that provides value.”