WASHINGTON -- Google Chief Legal Counsel David Drummond waited and politely smiled as Amazon, the Registrar of Copyrights and assorted other critics Sept. 10 slammed the proposed Google Book Search deal before a sparse panel of the House Judiciary Committee. Then, late in the hearing, he dropped a surprise announcement.

"We believe strongly in an open and competitive market for digital books.  As part of that commitment, today we announced that for the out-of-print books being made available through the Google Books settlement, we will let any book retailer sell access to those books," Drummond said.
Drummond said Google will host the digital books online with retailers such as Amazon, Barnes & Noble or local bookstores able to sell access to users on any Internet-connected device they choose. The announcement undercut much of the criticism leveled at Google over the deal.

The settlement, which is currently under review by the Department of Justice and subject to a New York court approval for possible antitrust violations, would give Google the right to scan "orphan" books -- books still under copyright but whose rights-holders cannot be located -- for online users and potential sale in exchange for concessions that include creating a nonprofit Book Rights Registry for handling digital rights issues.

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Drummond's announcement seemed to catch Amazon's Paul Misener, vice president of Global Public Policy, flat-footed. Earlier in the hearing, Misener testified that under the proposed settlement, "Except for works of rights-holders who affirmatively opt out, the settlement would give Google -- and only Google -- a license to digitize and sell every U.S. book ever written."

He also characterized the settlement as "more like a joint venture than a settlement. By definition, orphan [works] won't be doing any opting in or out" of the deal. After Drummond's surprise announcement, Misener simply said, "We're happy to work with individual rights-holders."

Marybeth Peters, the Registrar of Copyrights, was also highly critical of the settlement, Google's new proposal to share orphan works rights or not.

"In the view of the Copyright Office, the settlement proposed by the parties would encroach on responsibility for copyright policy that has traditionally been the domain of Congress," she testified. "We are greatly concerned by the parties' end run around legislative process and prerogatives, and we submit that this Committee should be equally concerned."

Lawmakers were more sanguine about their legislative prerogatives.

Silicon Valley Rep. Zoe Lofgren (D-Calif.) noted that Congress has attempted in the past to deal with the rights to orphan works. "We wouldn't be here [today] if Congress had dealt with orphan works but it failed to come up with a solution." Google, she said, had tackled the problem by seeking forgiveness and not permission when it began scanning books in 2004, a point also made by Rep. Lamar Smith (R-Tex.).

"Some complain that Google was able to negotiate this agreement only after they allegedly infringed the rights of tens of thousands of copyright holders," Smith said. "Without that action and the litigation that led to the subsequent certification of a class, we would not be here today."