Google Nips and Tucks Google Book Search Deal

By Clint Boulton  |  Posted 2009-11-15

Google, authors and publishers Nov. 13 narrowed the scope of their agreement to let Google sell access to millions of out-of-print books online, limiting it to include works registered with the U.S. Copyright Office or published in the United Kingdom, Australia or Canada.

Financial terms of the Google Book Search deal, intended to settle a 2005 copyright suit with Author's Guild and Association of American Publishers, have not changed. Google will still pay $125 million to scan out-of-print works into its search engine and sell access to them to consumers and libraries, sharing revenue with the authors and publishers who owned the copyrights.

Amazon, the Department of Justice and others had expressed concern that Google would have too much control over orphan works under the original agreement filed in October 2008. The revised deal addresses these concerns.

The amended settlement requires the Book Rights Registry-the group appointed to distribute digital book sales to Google, authors and publishers-to have a court-approved trustee to represent rights holders for orphaned works and license their works to third parties.

The trustee can grant licenses to other companies who also want to sell these books, and will oversee unclaimed money. Money that goes unclaimed for 10 years will be used to locate rights holders or be granted to charities.

The revamped settlement also clarifies how Google's algorithm will work to price books it scan and sells. The algorithm used to set consumer purchase prices will simulate the prices in a competitive market, and prices for books will be established independently of each other. Moreover, the Registry cannot share pricing information with anyone but the book's rights holder.

The new settlement also removes the non-discrimination clause that pertained to the Registry licensing of unclaimed works, enabling it to license works to other parties without ever extending the same terms to Google.

The Open Book Alliance, formed in August with Amazon, Microsoft and Yahoo to oppose the Google Book Search bid, blasted the revised settlement in a statement. Calling the revision a "sleight of hand" by Google and its partners, OBA co-chair Peter Brantley said:

"None of the proposed changes appear to address the fundamental flaws illuminated by the Department of Justice and other critics that impact public interest. By performing surgical nip and tuck, Google, the AAP, and the AG are attempting to distract people from their continued efforts to establish a monopoly over digital content access and distribution; usurp Congress's role in setting copyright policy; lock writers into their unsought registry, stripping them of their individual contract rights; put library budgets and patron privacy at risk; and establish a dangerous precedent by abusing the class action process."

While the OBA believes the revised deal won't satisfy the DOJ, it is unclear how the regulator will receive the deal. The DOJ in September said that the original deal would violate class action, copyright and antitrust law and should not be approved without changes. 

Officials for Google, the Author's Guild and the Association of American Publishers filed their deal only minutes before the New York District Court's deadline, capping months of revisions after opponents to the deal complained that Google would have too much power and control over the digital book market.

New York District Court Judge Denny Chin will set a timeline to study the deal, which will likely include a notice period, an objection period and a final fairness hearing in January 2010.

See the modification overviews here and a FAQ here. Search Engine Land's Danny Sullivan took notes during a conference call with Google and officials from the Author's Guild and AAP.

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