Google online library battle hits House

Google’s battle with Amazon.com, Microsoft and Yahoo came to Capitol Hill on Thursday as the head of the U.S. copyright office backed claims that Google violates author copyright issues with its online library.

Register of Copyrights Marybeth Peters told the House Judiciary Committee that she opposes the proposed $125 million settlement Google reached with authors and publishers.

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The committee was examining a settlement that resulted from a long-running fight between Google, which has scanned and indexed online 10 million books since 2004, and authors and publishers who say doing so violates their copyrights. Microsoft, Amazon.com, Yahoo and others have protested the project, as have some European countries including Germany and France.

Peters said the settlement agreement essentially “allows Google to engage in activities that are indisputably copyright infringement” and would significantly “alter the landscape of copyright laws.”

But few lawmakers at the hearing voiced objections to Google’s project.

The controversy over the settlement raises new calls for Congress to modernize copyright law to keep up with digital publishing. The Justice Department will weigh in by Sept. 18, and a New York federal court will hold a fairness hearing on Oct. 7. Other objections to the settlement were due this week.

Rep. John Conyers Jr. (D-Mich.), the committee’s chairman, said he thinks the settlement is fair to copyright owners and allows them to determine how consumers access and pay for their works.

“Google is in this position, in my view, not because they have engaged in predatory or anticompetitive behavior, but because they have built a better mousetrap in the eyes of mousetrap purchasers,” he said.

Google says the Google Book Search project will make out-of-print and rare books more accessible to consumers. Google also argues that the settlement does not block competitors from striking agreements with publishers to make works available online, and it will license works to competitors through the registry created by the arrangement. Google allows publishers to sell access to books through online and offline retailers.

Representatives from the National Federation of the Blind and the Authors Guild praised the settlement and Google’s efforts to make millions of literary works available to libraries, universities and people with disabilities.

But opponents say it is anti-competitive. Amazon.com, the largest online bookseller, has led the charge against the settlement, saying it creates an exclusive arrangement between Google and authors.

“This settlement would give Google exclusive, liability-free monopoly rights to millions of works,” said Paul Misener, Amazon’s vice president of global public policy. He said Amazon has a project similar to Google’s and has scanned 3 million books so far.

“The difference is, we first sought permission from rights holders and, one by one, negotiated deals with rights holders,” he said. “This settlement releases Google from any future infringement.”

The major sticking point in the settlement is over so-called “orphan works,” or works that remain in copyright but the holder of that copyright cannot be tracked down in order to get permission to use the work. Generally, a copyright is in effect for the life of the author and 70 years after the author’s death. For anonymous works, the copyright applies for 95 years from the year of its first publication, or for 120 years from the year of its creation, whichever expires first, according to the U.S. Copyright Office.

Under the settlement, orphan rights holders need to come forward to be removed from the arrangement. If they don’t come forward, Google will get full rights to use the orphan works in its digital library.

“If only one firm is authorized to use those works, we will have a monopoly over those works,” said Randal Picker, a professor at the University of

Chicago Law School. “The fact that Google Book Search generates substantial benefits to consumers does not somehow insulate the settlement from antitrust inquiry.”

He urged Congress to address the issue with legislation to establish a licensing regime for orphan works.

Rep. Zoe Lofgren (D-Calif.) said Congress should have addressed the problem of orphan works long ago, but said it is not surprising that a private company found one solution.

“We’re going to see for the first time competition to Amazon,” she said. Turning to Misener, she said, “In the end, it’s going to make you a stronger company.”

Rep. Lamar Smith (R-Texas), the committee’s ranking member, acknowledged that Google Book Search is a “novel and innovative way for people to acquire knowledge.”

But he said Google was only able to negotiate the agreement after “allegedly infringing on the rights of tens of thousands of copyright holders. … In fact, the only way a competitor would be positioned to benefit from a similar arrangement would be to follow the same course of action.”

He said Congress has been wrestling with the orphan works issue for years and “the settlement agreement at issue today is but one — and not necessarily the right — solution.”