Microsoft, Amazon, Yahoo! and others in a coalition opposed to Google's plans say the deal could violate two international treaties that grant exclusive rights to writers and other copyright holders, lawyer Cynthia Arato wrote in a memo produced with the Open Book Alliance.
Google's plans to create the world's largest online library ran into a legal wall in 2005, after authors and publishers filed class action copyright claims against the search giant. While Google said it was only publishing book excerpts for search purposes, under laws that permit "fair use" of copyrighted material, the authors themselves felt they were not sufficiently compensated for their work.
Years of negotiations resulted in a $125-million settlement with those groups, in which they would allow Google to index their materials if the search company shared some of its resulting profits. Google also included as part of that deal its plans to index all works automatically, unless authors and publishers specifically opted out.
That deal is still pending review by a federal judge in New York. But if the settlement does win final approval, Arato noted in her report for the Open Book Alliance that the angry parties could file claims against the United States in international court, subjecting the country to "diplomatic stress.”
According to her report, the settlement would violate a 1986 copyright treaty that the United States has long sought to enforce. It could also affect a separate accord hammered out years later in the World Trade Organization.
Both documents grant exclusive rights to copyright holders -- meaning Google must seek permission to add books to its registry, not scan them and only after allow those authors and publishers to opt out. The two provisions could consequently subject the United States to copyright claims in international court, the lawyer said.
Arato's memo echoes testimony delivered by Marybeth Peters, the register of copyrights, at a House Judiciary Committee hearing examining the deal last September. She too warned that the settlement could impose "diplomatic stress" on the United States, and she slammed the search giant for crafting the deal without sufficient input from stakeholders.
“In essence, the proposed settlement would give Google a license to infringe first and ask questions later, under the imprimatur of the court,” she noted in prepared testimony.