Google's book deal is promising, but antitrust concerns remain, says the DOJ.

Google's book deal is promising, but antitrust concerns remain, says the DOJ.

As educators and researchers await a landmark decision with enormous implications for schools and colleges, a Manhattan judge says it will take some time to decide whether Google can legally build the world’s biggest digital library.

Google’s effort to create the world’s largest library by scanning millions of books for use on the internet faces a courtroom fight as authors, foreign governments, corporate rivals, and even the U.S. Department of Justice line up to challenge it.

Judge Denny Chin heard oral arguments on Feb. 18 and said he already had read more than 500 written submissions about Google’s $125 million deal with authors and publishers, which was aimed at ending a pair of 2005 lawsuits and clearing legal obstacles to a gigantic online home for digital books. (See “Google rebuts DOJ objections to digital book deal.”)

Chin was to hear arguments from both sides before deciding whether changes made to a deal first announced in October 2008 are sufficient to withstand constitutional scrutiny. Chin said there’s “too much to digest” to rule immediately. It’s unclear when he’ll rule.

The publishing industry sued Google after it announced plans to build the giant online library in December 2004. Since then, the Mountain View, Calif., company has scanned more than 12 million books. Google says the judge holds the key to “the greatest library in history.”

The Justice Department says the effort holds “vast promise” but still raises antitrust issues, adding that Google and the plaintiffs in the fall made substantial improvements to the original settlement, but that “substantial issues remain.”

It said the new deal raised antitrust concerns and suffered from the same core issue as the original agreement by establishing forward-looking business arrangements that “confer significant and possibly anticompetitive advantages on a single entity—Google.”

In court papers submitted last week, Google defended its deal with authors by saying its digital library lives up to copyright law’s purpose of creating and distributing expressive works.

“No one seriously disputes that approval of the settlement will open the virtual doors to the greatest library in history, without costing authors a dime they now receive or are likely to receive if the settlement is not approved,” said Google.

Still, the Department of Justice said it believes an approvable settlement might be possible, perhaps by requiring rights holders to opt in to the settlement.

France and Germany, which oppose the settlement, noted they support a European book-scanning project, Europeana, because it is in compliance with their laws and requires permission from copyright holders before books are scanned.

Obtaining permission beforehand is what Amazon.com Inc. said it did when it engaged in a similar book-scanning project. Amazon’s lawyers oppose the settlement and have asked to address the court. Other Google rivals, including Microsoft Corp. and Yahoo Inc., also oppose the settlement.

Among authors opposing the deal are folk singer Arlo Guthrie and writer Catherine Ryan Hyde, whose novel Pay it Forward was adapted and released as a movie.


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