The judge said the settlement that the company had reached with U.S. authors and publishers would “grant Google significant rights to exploit entire books, without permission of the copyright owners.”

He was particularly critical of the access Google would have to so-called orphan works—out-of-print books whose writers could not be located—saying the deal gave the company “a de facto monopoly over unclaimed works.”

That was one of the fears raised in 2009 by the Department of Justice when it concluded that the agreement probably violated antitrust law and could decrease competition among U.S. publishers and drive up prices for consumers.

The deal, the judge said, gives Google “a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission.”

He noted that the case was not about full access to copyrighted works or the sale of them, because Google did not scan the books to make them available for purchase, but he said the deal still would let Google sell full access to copyrighted works that it otherwise would have no right to exploit. The litigation focused on the use of an indexing and search tool.

The judge said Congress ultimately should decide who should be entrusted with guardianship over orphan books and under what terms, rather than the issue being resolved by private, self-interested parties.


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