San Francisco's Internet Archive says the Google books settlement needs an intervention.
The digital library wants to intervene in the $125 million settlement with authors and publishers that gives Google the rights to scan and sell books on the Internet. In a Friday letter to the New York judge handling the case, the Internet Archive claims that if the settlement is approved, it would give Google a monopoly on so-called orphan works -- out-of-print books whose copyright owner can't be found or isn't known.
"We're very concerned that this potential monopoly on orphan works will prevent other actors who want to provide access to the corpus of the books," said Peter Brantley of the Internet Archive, a nonprofit that has its own book-scanning project.
The settlement is unfair, according to Brantley, because it releases Google from any liability to copyright owners who might come forward to claim their orphaned works. Organizations like the Internet Archive continue to run the risk of being sued for scanning and distributing them -- a "significant barrier," he noted.
Outcry over the fate of orphan works -- which some estimate as 70 percent of the books being scanned -- has been growing as the May 5 deadline for objections to the settlement approaches. Some law professors and consumer watchdog groups have voiced antitrust and copyright concerns. The Internet Archive, represented on a pro bono basis by Arnold & Porter, is the second to file a motion to intervene.
A Google spokeswoman didn't respond to a request for comment Friday, but previously issued a generic statement on opposition to the settlement.
"If approved by the court, this settlement stands to expand access to millions of books in the U.S. From the beginning, we've envisioned a future where students, researchers and book lovers could all discover and access the world's books online. We believe that this agreement represents a giant step toward realizing that vision."
Reached last fall, the settlement ended a protracted copyright fight between authors and publishers and Google. The deal, which will give authors and publishers a 63 percent cut of online books sales, calls for Google to put proceeds from the sale of orphaned works in an escrow account for five years. The money would be available to pay those who assert ownership of an orphan work.
UC-Berkeley School of Law professor Pamela Samuelson said the issue of orphaned works should be handled by legislators, not a settlement in a class action. "Usually if you want a compulsory license you have to go to Congress," she said.
Samuelson said she favors a scenario in which the Internet Archive and other digital libraries, not just Google, would get a license to scan the books and make them available online.
"I hadn't expected them to intervene," she said. "It's an interesting development -- it's going to be interesting to see how it turns out."
Brantley said that by intervening, the Internet Archive hopes to get a seat at the table in shaping the agreement on orphaned works or to take them out of the settlement entirely.
"We think there are alternative ways of creating infrastructure legally that would permit the exploitation of these works for a broader audience," he said.
Alternatives could include a database of orphaned works with information about what is known about their copyright holders, so that entities could scan at their own risk, he said.
The Internet Archive previously worked with Microsoft Corp. on a book-scanning project that Microsoft later abandoned. Although the Google rival is funding at least one law professor's opposition to the settlement, Brantley said Microsoft was not involved in their move.