New York judge mulls Google's digital library

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Those extolling its impact on human knowledge have compared Google ambitious project to digitize millions of the world's books to everything from the ancient library at Alexandria, to Gutenberg's printing press, to the Human Genome project and astronomy's Sloan Digital Sky Survey.

But the high praise hasn't stopped writers, academics, governments (including that of the United States) and Google competitors Microsoft and Amazon from opposing a proposed class-action settlement that would allow Google to proceed with its Google Books project.

Many argue the deal will turn Google into a monopolistic monster, dominating the global market in electronic books with arrangements no competitor could ever hope to duplicate. One prominent critic says Google is creating not a library, but a shopping mall.

The project's fate sits with a New York judge who is mulling a complex deal to end two class-action lawsuits filed by U.S. authors and publishers in 2005. The $125-million (U.S.) settlement, which comes after two years of negotiations, would bless Google's scanning of millions of books. It also lays out both how writers and publishers would be compensated and how Google would manage and charge for use of its database.

In Google's final submission to the court, its lawyers argue that "no one seriously disputes" that its plan "will open the virtual doors to the greatest library in history."

But Canadian intellectual property experts say the settlement, which the American Authors Guild refers to as "the biggest book deal in history," could have wide ramifications for international copyright law, while potentially violating antitrust laws and the terms of international treaties.

The settlement would also could put Canadians in a peculiar position: Canadian writers, unless they opt out, would see their works included in Google's project. But Canadian consumers would have more limited access to Google's promised Alexandrian library than Americans - unless Google were to eke out a similar settlement in Canada.

Even those who question the U.S. deal acknowledge the amazing possibilities of a worldwide digital library. But many argue that a U.S. class-action settlement is the wrong place to decide the future of the world's copyright rules.

"Is it appropriate for a handful of geniuses at Google and a handful of lawyers from the private sector to rewrite all the copyright law and treaties around the world in one fell swoop?" said Howard Knopf, an Ottawa copyright lawyer with Macera & Jarzyna LLP who has followed the case.

Judge Denny Chin of the U.S. District Court for the Southern District of New York heard from a long list of opponents of the 368-page deal at a final hearing on the proposed settlement in February, and has been deliberating since.

The settlement would exclude continental Europe but includes Canadian, British and Australian works along with American ones, up to 2009, unless authors or publishers have already chosen to opt out. Of the $125-million Google has agreed to pay, most would go to compensate authors and rights holders whose books have already been digitized without their consent, or to their lawyers.

But $34.5-million would go toward setting up an organization called the Book Rights Registry, which would collect future revenue from Google and distribute it back to writers and publishers. The settlement would also controversially allow Google to digitize so-called "orphan works," or out-of-print books whose copyright holders cannot be found.

While Canadian works may be included in the database, Canadian users and libraries will not have the same access as Americans, Mr. Knopf said, as the settlement will only cover Google's U.S. copyright infractions.

Currently, Google Books offers mostly "snippets" of books covered by copyright and full versions of classics that are no longer protected, such as those by Shakespeare and Dickens. Some publishers have agreements that allow more of their books to be included.

Unlike France and Germany, whose governments formally objected to the Google settlement, Canada has been quiet on the issue. Canadian publishing industry groups have expressed support for the settlement, but a list of Canadian authors filed a submission in opposition.

"I find it puzzling to say the least that our Canadian government has shown no apparent interest in this file," Mr. Knopf said.

There are not just copyright issues at stake. Google's competitors, and the U.S. Department of Justice, among others, have argued the settlement grants the search engine giant a monopoly that could violate antitrust laws. Even Microsoft, no stranger to antitrust investigations, makes this argument.

"If Google is the only game in town, you've got to pay what Google wants," said David Fewer, legal counsel for the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa.

Whatever happens in the U.S. case, Mr. Fewer said Google may actually need to fight another class action in Canada in order to fully open up its book search here, without legislative changes. (The Conservative government has said it plans to make another attempt to reform copyright laws this spring.)

At the moment, the ambitious multibillion-dollar company with the famous "Don't be evil" motto appears to have its hands full, awaiting a ruling in New York. While Judge Chin could approve the settlement or suggest modifications, anything - from a new hearing, to appeals, to new litigation, to even a trial that ends in an order for Google to pay damages - is possible.

Even with its vaunted search-engine algorithms, it may be hard for Google itself to predict what happens next.