Google May 10 denied allegations that its Google Book Search deal violates international laws and treaties that could cause the United States to pay penalties to countries under rules overseen by the World Trade Organization.
Google in October 2008 inked the $125 million Google Book Search deal with the Association of American Publishers and the Authors Guild. The proposal calls for Google to scan and offer users access to orphan books, or those works for which authors can't be found or are unknown.
While some authors and publishers agree this will be a satisfactory way to make royalties from their works, the Google deal has been opposed by hundreds of parties.
The most vociferous opponent to Google Book Search has been the Open Book Alliance, which has argued that the deal will give Google a monopoly over works and pricing in the digital book market.
Now the OBA has turned to the law firm of Macht, Shapiro, Arato and Isserles, which filed objections to the agreement on behalf of groups of foreign publishers and authors, to cement its argument that Google Book Search violates rules defined by the WTO.
Cynthia Arato, partner at the law firm and an expert in intellectual property and copyright law, said on a conference call with reporters that Google Book Search does not protect copyright owners' exclusive rights to their content, violating a provision of the Berne Convention for the Protection of Literary and Artistic Works.
This provision holds that people cannot use copyrighted works without express consent. Arato wrote in a memo: (PDF)
""If approved, the settlement would (1) grant Google automatic rights to exploit digitally millions of books without requiring Google to obtain any authorization from any foreign copyright owner or author; and (2) require these foreign rights holders to jump through burdensome hoops simply to exercise a watered-down contractual right-that the settlement creates-to halt such use." "
A Google spokesperson said while the company has not fully reviewed the OBA's document, it is confident the settlement between Google, authors and publishers is compliant with U.S. and international copyright laws.
"The settlement offers an extraordinary opportunity to unlock access to millions of books for students, readers, and researchers across the U.S. It exposes readers to information they might not otherwise see, and it provides authors and publishers with a new way to be found," the Google spokesperson said.
But Arato also said the agreement violates the principles of the WTO's agreement on Trade-Related Aspects of Intellectual Property Rights, aka TRIPs.
Specifically, Arato said the deal would infringe the TRIPs rule that any deal granted by a WTO member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other WTO members.
With Google Book Search, Arato said the United Kingdom, Canada and Australia have a seat in the deal's Book Rights Registry for awarding compensation, an offer not accorded to other WTO members.
Finally, the settlement restricts Google's right to exploit commercially available books in the United Kingdom, Canada and Australia, but these restrictions do not apply to other countries, Arato claimed.
Arato said if a U.S. district court judge blesses the deal, foreign nations can challenge the United States over treaty violations of the settlement, possibly leading financial penalties or trade sanctions against the United States.
"If the settlement is approved, it may give rise to legal action against the U.S. before an international tribunal and will certainly expose the U.S. to diplomatic stress," she said.
Judge Denny Chin, presiding over the Google Book Search case for the district court of Southern New York, is expected to pass final judgment on the case soon.