DOJ Looks into Google Scanning Settlement

The Department of Justice, as well as a group of state attorneys-general, is looking into whether Google’s proposed settlement of lawsuits challenging its Book Search project violates antitrust laws.

The DOJ’s lawyers have been in contact with the Internet Archive, Consumer Watchdog, and other groups opposed to the agreement, and have notified the parties to the settlement—including Google, the Association of American Publishers, and the Authors Guild—that DOJ is investigating antitrust issues, the New York Times reported April 29.

Also evincing concern about settlement implications are some state attorneys general, Reuters reported May 8. Confirming that he had participated in a May 5 conference call about the matter with an unspecified number of them, Internet Archive Director Peter Brantley emphasized, “There was no indication that there was any specific activity planned.”

The settlement, which was reached in October 2008, allows Google to scan copyright books and display up to 20% of the text to users at no charge. Google will sell online access to individual books, and libraries, universities, and other institutions can purchase online subscriptions to large collections. The firm will keep 37% of revenue, with the remainder going to copyright holders through a Book Rights Registry.

The Times also reported that Federal District Judge Danny Chin, who is overseeing the agreement, granted April 28 an extension to September 4 of the original May 5 deadline for finalization of the settlement. The action came as objections grew more widespread.

In an April 17 letter, the Internet Archive asked the court to alter the settlement to give other groups that have scanned orphan works the same copyright protection that Google would be granted. Consumer Watchdog wrote the Department of Justice April 1 to warn that the settlement is likely to inhibit potential competitors from entering the field.

The American Library Association, ALA’s Association of College and Research Libraries, and the Association of Research Libraries filed comments with the court May 4, asking Chin to exercise vigorous oversight of the interpretation and implementation of the settlement to ensure the broadest possible benefit from the services the agreement enables. While not objecting to the settlement, the groups expressed concern that some of its aspects, particularly the absence of competition for Google, could compromise fundamental library values, including equity of access to information, patron privacy, and intellectual freedom.

ALA President Jim Rettig warned that the agreement “offers no assurances that the privacy of what the public accessed will be protected, which is in stark contrast to the longstanding patron privacy rights libraries champion on behalf of the public.”

“While this settlement agreement could provide unprecedented access to a digital library of millions of books,” said ACRL President Erika Linke, “we are concerned that the cost of an institutional subscription may skyrocket, as academic journal subscriptions have.”

“The filing before the court by the library associations demonstrates that the associations will be vigilant in highlighting the interests of the public in this settlement,” noted ARL President Tom Leonard. “We have asked the court to exercise vigorous oversight to ensure that the powerful groups that control content do not leave individual researchers, libraries, other cultural organizations, and the public without an effective voice.”

With more parties weighing in, New York Law School announced May 5 that it would create a Public Index website of legal documents in the case as well as comment sections for visitors.

—Gordon Flagg, American Libraries Online
Posted on May 8, 2009; modified May 10, 2009.

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