The Global Antitrust Battle Over Google's Library

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From left: M. Weingartner / Corbis

Who knew there was so much fight in those dusty books? When Google announced plans in 2004 to scan millions of tomes tucked into library stacks across the country, admirers embraced the ambitious project as a digital undertaking as visionary as Magellan's setting sail around the world. The project would throw open musty archives everywhere, putting hidden works on the Internet for all to use.

How things change. The library project is now embroiled in a ferocious legal free-for-all spanning the globe. At the battle's heart is Google's year-old settlement with groups representing authors and publishers who sued the company over its plans to digitize and copy books. In response to complaints by the settlement's many opponents, a federal judge in New York has asked Google to revise the settlement by Nov. 9. After that, opponents and the Department of Justice (DOJ) will carefully scrutinize the new deal.

The case presents a tangle of issues: how to create new markets for old books without shortchanging authors; how to nurture new technology without stifling competition; and how to preserve all that when one company — in this case, Google — is pioneering the revolution and could profit handsomely. One commentator, who supports the original settlement, has called it "the World Series of antitrust."

Some of the protest centers on a new, nonprofit Book Rights Registry that the settlement would create. The registry would find authors or their heirs and pay them for the use of their newly digitized writing, whether a blockbuster novel, a poem included in an anthology or liner notes for a long-ago blues album.

Experts say the registry would be a novel way to tackle the problem of distributing printed works widely when their authors are difficult or impossible to find. But even as the amount to be paid out and how it would be distributed remains an issue, the DOJ is fretting about the arrangement, saying it appears to create a price-fixing structure, it could stifle competition, and it may give Google exclusive rights over so-called orphan books whose copyright holders can't be found. The company plans to become a digital book seller; millions of scanned books, or snippets of them, have already vastly expanded its vaunted Web search engine, the company's prime business.

Pamela Samuelson, a faculty director of the Berkeley Center for Law & Technology who has raised concerns about the deal, called it an "extremely significant case" for the future of digital publishing. "The logic of the agreement, I think, is going to put Google in a very privileged position in the digital book market."

The original settlement appeared to be a fait accompli until last summer, when a sleepy copyright case, Authors Guild et al. vs. Google Inc., erupted into an intercontinental brawl. Hundreds of authors and publishers from the Netherlands to New Zealand have written to U.S. District Court Judge Denny Chin, some expressing astonishment and outrage. France and Germany have protested; German Chancellor Angela Merkel singled out Google for criticism in a podcast this month.

Authors are on both sides of the barricades. Opponents of the settlement include silver-maned folk singer Arlo Guthrie and former Deputy Assistant Attorney General John Yoo, author of the so-called torture memos for President George W. Bush. The settlement counts The Joy Luck Club author Amy Tan and noir crime novelist Elmore Leonard among its supporters. The deal has many other supporters as well, from disability rights groups to Dr. Seuss Enterprises and the National Grange.

Fueled by writers, the debate has plenty of rhetorical flourishes. One incensed objector called Google a "Dickensian street pickpocket." The Open Book Alliance, a coalition that includes goliath rival Microsoft as well as the National Writers Union, likened Google to industrialist John D. Rockefeller and compared the settlement to a monopoly cartel controlling the future of digital publishing. "They have worked very hard to create the impression that this is like a freight train, and if you want to stand in front of it, you'll get run over," Gary Reback, an antitrust attorney who penned the legal brief for the Open Book Alliance, told TIME.

Last month the DOJ dropped perhaps the biggest bombshell. While saying that the settlement could breathe life into millions of unavailable works, the government also said the deal raised "significant legal concerns," and was the target of an antitrust probe.

Objectors have raised a dizzying array of criticisms: that the deal would put Google, the author's group and a small number of large publishers in the driver's seat of as-yet undiscovered e-book technology; that foreign authors and publishers weren't included; that the settlement was struck in secret; that many publishers and authors — particularly those in other countries — didn't even know about the case and weren't given enough time to respond once they found out. Publishers in Sweden and Germany complained that the settlement notification was so poorly translated that they had trouble understanding the case.

Dan Clancy, Google's engineering director, said the deal affects only a neglected and unprofitable sliver of the book market. Competitors like Microsoft and Amazon aren't trying to digitize library books — Microsoft started a rival effort but dropped it last year — "and so the fact that they don't want these books accessible isn't a shocker," he said. "The vast majority of people I talk to are very excited about the idea that this content is going to be unlocked and opened up." Clancy acknowledged criticism that some parts of the settlement may be too broad but said changes would be "targeted and surgical." While it may not be optimal to have only one company selling digital copies of old books, it's "better than zero," he said.

What to make of it all? With e-books poised to take off, the case raises thorny questions. Will the deal benefit the public along with authors and publishers, while providing only minimal profit to Google? Or will it chart the course for future digital publishing and nudge Google ahead of rivals in the infancy of an emerging and potentially lucrative business? It is suspense worthy of a legal thriller — and Scott Turow is among the settlement's supporters.