The editorial below, scheduled to be published in the October 1, 2009 print Library Journal, was written before the Department of Justice filed its "Statement of Interest" with the federal court on the Google settlement. We're pleased that the DoJ has expressed its concerns about the settlement. On September 22, we learned that the fairness hearing scheduled for October 7 was adjourned so the parties could amend the settlement agreement.

With a hearing in New York District Court set for October 7 on the proposed settlement between Google on the one side and publishers and the Authors Guild on the other, the Google Wars are heating up. The deadlines have passed for submitting comments and briefs, pro and con, to U.S. District Court judge Denny Chin. The issues the judge must grapple with have become increasingly complex, as more of those impacted state their case.

At its most basic, the settlement would institutionalize a Google monopoly over digital books and set the rules for them for the foreseeable future. Despite the lure of mass digitization of library holdings and the expanded access that Google’s library partners contemplate—and that many two- and four-year colleges and universities applaud—the settlement cedes control over pricing for library subscriptions to a Book Rights Registry that includes authors and publishers, not librarians. It allows a commercial entity to be in charge of patron/user privacy. And, in what seems like a paltry trade-off, it offers one free public terminal per public library and limited free terminals at academic libraries—the very institutions whose public stewardship enabled Google’s audacious decision to scan first and answer copyright questions later. (For LJ’s initial response to the settlement, see "Google Deal or Rip-Off?" 12/08.)

One hopes the many legitimate voices weighing in against the settlement will put the kibosh on it as it stands. Kudos go to U.S. register of copyrights Marybeth Peters, not known as a firebrand, who told a House Judiciary Subcommittee last month that the settlement would "turn copyright on its head." Initially a supporter, Peters said that as she dug more deeply, she "realized [this] was not really a settlement at all, in as much as settlements resolve acts that have happened in the past." Instead, she called the settlement an "end run around legislative process and prerogatives."

While Peters praised the idea of a rights registry, access for the "blind and print disabled," and the ability of libraries to offer books online, she said "none of these possibilities should require Google to have immediate, unfettered, and risk-free access to the copyrighted works of other people. They are not a reason to throw out fundamental copyright principles; they are a pretext to do so."

Even partners in the Google scan project, like Cornell University Library, which supports the settlement, have raised concerns. In a letter to the court, the library pointed to "the potential for exploitative pricing of the Institutional Subscription" and "the need for academic representation in the governance of the proposed Book Rights Registry."

It is unfathomable that the Authors Guild, whose members write books for the trade market, speaks for all authors, or that it could fairly represent more than its own members’ concerns. Even some of those members oppose its role. Other writers’ organizations have protested the settlement, too, and a letter to the court from University of California–Berkeley Law School’s Pamela Samuelson raises several issues pertaining to academic authors. Their works, notes Samuelson, comprise a much larger portion of the institutional database, scanned as it is from academic libraries, than do those of Authors Guild members.

Samuelson, a professor of law and information, and some 65 cosigners to her letter write, "Academic authors would...have insisted on much different terms than the Authors Guild did, especially in...pricing of institutional subscriptions [i.e., limiting ‘the risks of price-gouging’], open access, annotations sharing, privacy, and library user rights to print out pages from out-of-print books. [They] would have pushed harder...for more researcher-friendly...provisions and for commitments to quality scans and metadata."

Spoken like a true librarian.

The more experts like Peters and Samuelson delve into the settlement, the more they uncover troubling implications. It is clearly not in the best interest of libraries or the various publics they serve. We call on Judge Chin (and, as Peters does, on Congress) to throw out the settlement—or at the very least modify and supervise its most pernicious sections—to ensure that the future of digital books, many scanned from libraries that purchased them at significant cost, not be put in the exclusive hands of Google.