In e-books, it's an army versus Google

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.

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

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 Google’s Chief Legal Officer David Drummond.

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 US 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 digitise 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 catalogue, 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 per cent 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 commercialise millions of orphan works, books whose rights holders are unknown or cannot be found.