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In a sign that Google has been listening to critics' complaints, it recently signed an amended individual agreement with the University of Michigan, adding a mechanism that would give the university the right to dispute a price increase through arbitration. Any price discrepancy in the arbitrated settlement would come from Google's 37% revenue stake, not from the authors' and publishers' share. "That's a step in the right direction, but it only benefits the University of Michigan at this point," says Williams.
Then there's the privacy issue. Google has the technology to track every page and book a person reads, how long they spend on a given page and what books they purchase. Yet the agreement makes no mention of how much of this information will be collected or how it will be used. "That really flies in the face of core principal library values of protecting patron privacy," says Williams. "This agreement is completely silent on the issue of privacy."
Opposition to the deal has been escalating, with librarians, academics, consumer advocates and even a few authors urging the federal court to either scuttle the deal or at least amend it. The son and daughter-in-law of author John Steinbeck as well as musician Arlo Guthrie are among the high-profile critics. In May, the federal judge overseeing the matter extended the deadline to Sept. 4 for people to offer comments and for publishers to opt out of the deal.
In April, the Department of Justice launched its own investigation to see if the deal broke antitrust laws. And this week, opponents were elated when the DOJ appeared to step up its scrutiny by issuing civil investigative demands, or CIDs, demanding additional information from Google and other parties.
But Google has its supporters. "I think a lot of [the criticism] has been unfair and really ignores the benefits this provides," says Paul Aiken, executive director of the Authors Guild. "We're talking about bringing books to people on the Internet — making sure that books stay relevant in the online age and that people have sources for facts that go beyond what's available on Wikipedia."
Dan Clancy, engineering director at Google, dismisses suggestions the deal will give Google a monopoly. He says orphans represent only a small percentage of the overall books Google is dealing with, although he was unable to say what percentage of the 10 million books Google has scanned thus far fall into this category.
Clancy contends that the orphan-licensing agreement wasn't extended beyond Google because it was part of a class action settlement pact, and other companies weren't part of the suit. He supports efforts by Congress to pass an orphan-works bill that would give everyone similar legal protection.
On the matter of privacy, Clancy says Google will issue guidelines before the program is rolled out.
Advocates remain upbeat that the deal will get a green light. "We believe that we're on very solid legal ground to get this settlement approved," says Michael Boni, a partner at Boni & Zack LLC, which represents the Authors Guild. "So we're really not considering any doomsday scenarios at this point."
However, attorney John Briggs, who isn't involved in the case, says the DOJ clearly has concerns. "It's not routine for a settlement of a class action like this to be getting scrutiny of any sort from the Department of Justice," says Briggs, managing partner and co-chairman of the antitrust group at Axinn, Veltrop & Harkrider LLP law firm. "I think it signals Google is very much in the sight line of the Department of Justice."
Supporters warn it would be a huge blow to the publishing world if the deal is scuttled.
"I think the publishing industry is under great stress trying to figure out how to operate in a world where it's very easy to make copies of things and to distribute copies of things — which is exactly the problem that the music industry faced," says Paul Courant, dean of libraries at the University of Michigan.
"I think it would be very bad for publishers and authors and the digitization of information going forward if the settlement is not accepted, even if it has to be adjusted in some way, shape or form," says Carolyn Reidy, chief executive of Simon & Schuster, who was a party to the agreement.
The federal court hearing is slated for Oct. 7.