The Google Book Search Settlement, heading for a court hearing in October but also the subject of a Department of Justice antitrust inquiry, is beginning to generate more skepticism from arbiters of the public interest.

The Christian Science Monitor praised the potential of the settlement in an editorial on August 7. However, the newspaper acknowledged questions raised by library groups and other critics: “If it stands, the agreement must include long-term safeguards that allow public access to the full collection at reasonable cost, maintain the rights of copyright holders, and ensure the necessary privacy of those who use the service."

The Washington Post, also in an August 7 editorial, mostly praised the settlement, but questioned whether the Book Rights Registry set up in the deal should be prevented “from offering a better deal to any of the company's competitors within its first 10 years.”

While Google claims it has performed a public service in setting up the registry, the newspaper opined, if “the set of protected books encompasses only those so valueless that no one will come forward to claim them, it is baffling why protection from competition in this area would be valuable. If, on the other hand, locating book rights holders requires time and effort, and the market for digitized versions of these books is easy enough to enter that a competitor could offer a better deal, this clause would create a real barrier to competition.”

A law professor’s critique
Writing in the Huffington Post August 10, University of California, Berkeley, law professor Pamela Samuelson called the settlement, if approved, “the most significant book industry development in the modern era. Exploiting an opportunity made possible by lawsuits brought by a small number of plaintiffs on one narrow issue, Google has negotiated a settlement agreement designed to give it a compulsory license to all books in copyright throughout the world forever.”

Samuelson contends that Google, which had a good case that its scanning was fair use, chose to settle with the plaintiffs, the Association of American Publishers (AAP) and the Authors Guild (AG), because it could then get access to the universe of books. And the APP and AG would be willing to settle because they’d get a privileged position as representatives of the larger classes.

Questions of fairness
Samuelson questions whether the AAP and AG were fair representatives of the larger classes, and whether the Book Rights Registry can represent “the thousands of times larger and more diverse class of authors and publishers of books from all over the world.”

She noted, for example, that many academic authors “would much rather make their works available on an open access basis than to sign up with the Registry.”

Her subsequent column will explore why the Antitrust Division is investigating. In response, Law professor Mike Madison predicted, “The Justice Department will, in the end, facilitate a deal that gives other book scanning projects a release regarding orphan works that is comparable to what Google is getting via the settlement.”

Should authors opt out?
Meanwhile, the New York Times reports that agency William Morris Endeavor has advised authors it represents to opt out of the settlement because it would “bind copyright owners in any book published prior to January 9, 2009 to its terms.”

The Authors Guild responded that William Morris was off-base.