In essence, through its bi-lateral agreements with the , Google would acquire books from the library’s collections, which it would then digitally scan and translate into a machine-readable text. This machine-readable text would allow users to search for key words or terms and be provided with a list of all books in Google’s database in which those terms appear, as well as the number of times the word or term appears in each book.

According to , this index-like service instantaneously provided the public with vital information about books that “would otherwise not be obtainable in lifetimes of searching” without “providing the public with a substantial substitute for matter protected by the [Authors Guild’s] copyright interests in the original works or derivatives of them.” The Authors Guild took issue with this and contended that permitting users to read portions of the book, through Google’ “snippet function” service, was not a “transformative use” as articulated in

The Court reiterating the essence of , stated that “the more the appropriator is using the copied material for new, transformative purposes, the more it serves copyright’s goal of enriching public knowledge and the less likely it is that the appropriation will serve as a substitute for the original or its plausible derivatives, shrinking the protected market opportunities of the copyrighted work”.

In the case at hand, the Court found the ability for users to search millions of books for a particular term of interest was transformative and that the information displayed by Google was intentionally limited to ensure that the search results did not provide for a substitute of the original work.

Not everyone is in complete agreement with the Court’s interpretation of “transformative use”, according to , “Google Books is not the digital equivalent of a library card catalogue or even a CliffsNotes summary of each text, but a full-text compendium of all the books Google scanned….Google has not transformed the text of the books in any way—indeed maintaining the full text exactly as published is necessary and essential for the service to function”.

The Author’s Guild shared similar sentiments and hinted at appealing the ruling and hoped that the Supreme Court would correct the Court’s “”.

Unfortunately I will have to part ways with Mr. Parness and the Authors Guild and argue that the Court came to the right decision - sufficiently balancing both the interests of the public and those of the authors. The search services provided by Google are tremendously useful to researchers, students, and to the public at large, and at law, the conduct falls squarely in the realm of non- infringing fair use.

Although I am persuaded by this argument, I am also sympathetic to the concerns raised by the Authors Guild, (which were dismissed by the Court); namely that, despite the , rights-holders would be placed at risk of hacking, which could lead to the widespread unauthorized publication of their works on the web, resulting in the devaluation of their copyright. The cybersecurity threat is very real, as we have learned over the , but unfortunately, the contained within the Copyright Act is not the optimal (or even recommended) tool to combat the risk of future online infringement. It will be interesting to see whether or not the Supreme Court of the United States considers this issue, if it decides to hear the case, and conducts its own fair use analysis.

Mahdi M. Hussein is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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A copyright infringement by multiple authors’ groups – including two Canadian ones – against Google and several universities for their book scanning and digital distribution has been .

Federal Justice Hon. Harold Baer Jr. drew from the of , as well as the (ADA) in his decision. The defendants convincingly argued that Hathitrust appropriately disseminates materials for educational and social good purposes, in particular by greatly increasing reading material accessibility for people living with visual impairments.

The and the were the two Canadian plaintiff organizations, losing alongside the Authors Guild of America and others.

The backstory
The HathiTrust Digital Library is a database of reading material, much of which is provided the . The purpose of Google’s Library Project is, by Silicon Public writer Lisa Jackson, “to scan and publish all the books in the world.” HathiTrust already contains 10M books, 73 percent of which are copyrighted material.

This victory for Google follows on the heels of a recent copyright concession. In this , Google and the (AAP) announced a settlement in their marathon copyright dispute, which started in 2005. The suit was filed by the APP on behalf of members McGraw-Hill, Pearson Education, the Penguin Group, John Wiley & Sons, and Simon& Schuster. The APP gave Google the right to scan and sell e-books on the online store Google Play for an undisclosed amount of money.

The judgment
At issue was scanning for the purpose of indexing. The judge found that scanning is “transformative”, which is a fair use justification to sidestep normal copyright regulation. Historically for commentary, criticism or parody, but the definition is expanding in the digital day and age.

The judge, however, wrote that the “most important” transformative purpose of the scans was the “unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers” as argued by the defendants and the , which provided an opposition brief in the case. Judge Baer,

“The totality of the fair-use factors suggest that copyright law’s “goal of promoting the Progress of Science . . . would be better served by allowing the use than by preventing it.” Bill Graham, 448 F.3d at 608 (quotation marks omitted). The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement. In addition to the briefs submitted by the parties, the two memoranda filed by amici further confirm that the underlying rationale of copyright law is enhanced by the HDL.”

The orphans
Orphaned works remain in question. With a little over a quarter of works in HathiTrust having no copyright or known copyright, there is confusion about how best to proceed. Google proposed that it scan the orphaned works, place up to 20 percent of the text in search results, sell the works, and then set aside the collected sales revenue until the author comes forward. The New 91��ɫ Federal Court that proposal last year. U.S. District Judge Denny Chin felt that the plan as outlined in the Amended Settlement Agreement (ASA) not only  took too many liberties with the works, but also posed anti-trust concerns.

The ASA would give Google a de facto monopoly over unclaimed works. Only Google has engaged in the copying of books en masse without copyright permission…Google's ability to deny competitors the ability to search orphan books would further entrench Google's market power in the online search market.

Judge Baer did not rule on the orphan works question because the suit argued against the legality of the – a University of Michigan Library-led project to identify books whose copyright holders cannot be identified or contacted – which has not formally launched its efforts. The Orphan Works Project states on their website in an update from this past July that “There are no plans to provide access to these works.”

The new status quo
To recap the current parameters, there are some clear checks and balances to fair use in practice. One might say that neither side of this copyright debate is happy. And perhaps that’s how it should be. To wit:

• When people search the HathiTrust database to search a word in a copyrighted book, only the page numbers and number of mentions in the book are provided. The full text of the book is not available for fully abled individuals who do not have rights holder’s permissions.
• Full text will be made available for people who have rights holder’s permissions as well as for people with certified print disabilities. In the case of those with print disabilities, the work will be provided in an auditory version.

The response
The general public response has been largely positive, though there is a sample bias because so many internet commentators tend to the pro-digital-proliferation side of these types of debates. While many members of the copyright, legal or library community wrote supporting the decision; others, such as blogger Matthew Sag, have overstated the victory.

“The decision is a landmark win for the HathiTrust, the University defendants, people with print-disabilities, Google, the Digital Humanities and, I would argue, for humanity in general,” said Sag.

Authors are not, however, without their advocates. The concern that too much fair use hurts copyright holders who rely on copyright purchase for income was best summed up by Publisher’s Weekly reader George Payerle, who , “It’s clear that authors are expected to subsist on electrons.”

The big question
One major issue that remains under-addressed is data access. Google through HathiTrust is collecting large amounts of data about the who, what, where and when of book searching.

Word on the street is that Amazon has been less than generous about sharing its intel with publishers, so it’s possible that a part of the Google-AAP settlement includes terms of data sharing.

Certainly author groups should benefit from this same access to data, even as piecemeal compensation for their lack of legal copyright at the hands of fair use.

Denise Brunsdon is a JD/MBA candidate at Western University.

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Since the introduction of Google Books in 2004 (previously known as Google Book Search and Google Print), Google has seen the development of its online index and search tool marred by numerous lawsuits at home and abroad alleging copyright infringement. Publishers, authors, image creators and the like took issue with their unauthorized digitization of copyrighted works. In the United States, Google’s main contention throughout this legal saga has been that the snippets of pages that were digitized from books were covered under fair use laws.

Although it seemed as if an agreement between U.S. publishers and Google was close to approval from both sides in 2009, were critical of the wide-reaching and all-too-favourable terms for Google. Even the Department of Justice at a fairness hearing in 2010, citing the fact that the terms may violate anti-trust laws in the U.S. and also required the court to exercise powers that it did not have to instigate copyright reform beyond the scope of the case at hand. Not surprisingly, New 91��ɫ Southern District Judge Denny Chin because it “goes too far” in giving Google the upper hand. Interestingly, Judge Chin noted that many of the objections cited could be pacified if the terms reflected an “opt-in” framework rather than the “opt-out” process proposed. and other content creators were especially critical of the opt-out model, wherein Google had sweeping rights to use any orphan works indefinitely until the rights-holder comes forward and objects to such unauthorized use.

In contrast, the settlement that has come to fruition in France reflects such an opt-in framework, wherein Google must first obtain the permissions of publishing houses and their respective authors prior to digitizing the French works. To date, Google has already signed digitization agreements with two major French publishers, and . Following this settlement, it is likely that Google will set its sights on convincing more French publishers and content creators to join. However, it is that publishing houses that ally with Google in this deal must agree that they will not sell their books through any other competing e-content distributor, which could represent a major blow for Amazon, who recently introduced its French-language Kindle reader and accompanying online bookstore in France. What will likely result in France is a race between Google, Amazon, Apple and other e-book retailers to sign any and all publishers as quickly as possible.

The agreement in France may nonetheless have little effect on the situation in the States. On May 31, Judge Chin rejecting Google’s motion to dismiss the claims brought forward while also granting the three plaintiffs involved class certification status. Google has since to appeal the decision with the Second Circuit, with summary judgments to be filed by July 27 and trial scheduled to begin on October 9. It seems likely that the case will proceed to trial for a determination of whether Google has infringed copyrighted works and owe statutory damages. The debate will no doubt be centered upon what “fair use” in this context can mean and whether Google’s use of the copyrighted works can fall under the fair use defense.

Publishers Weekly has that remarks made by the Authors Guild’s Executive Director seem to suggest another invitation for Google to resume negotiations for settlement. For the publishing industry as a whole, a key point of contention in these negotiations that must be resolved is a determination of how to ensure that authors of all published works, including those of an academic nature, can be taken into account through this arrangement. UC Berkeley Law’s suggests that scholars like herself are quite happy to provide their academic works in an open access forum, and their goals differ quite a bit from the more profit-oriented Authors Guild. As Samuelson contends, a class action lawsuit such as this may not be the most appropriate mechanism with which to spur copyright reform to develop legal open access information schemes that cater to all. The results of this case, whether determined in or out of court, may indeed be a step in the right direction for the larger discussion of how best to balance protection of creators’ rights with public access to information and scholarship across all genres.

Fan Hannah Lan is a JD Candidate at Osgoode Hall Law School.

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On October 27, 2011 the European Commission adopted a recommendation calling for the nations of the EU to pool their resources and renew their commitment to the digitisation of European cultural texts and artifacts. These cultural materials are stored in Europe’s digital library, .

As , Europeana represents Europe’s homegrown response to competition from Google Books. Started in 2008 with only 2 million items, Europeana’s collection has since grown to over 19 million objects. These objects include digitised books, photographs, paintings, manuscripts, maps, newspapers, archival documents, audio and film. As Google’s resource digitisation project gained traction in the United States in 2008 and 2009, the EU launched Europeana as a publicly funded alternative that allowed them to sidestep the perils they perceived to exist in Google’s project. The European Commission worried about reliance on a corporate actor for the preservation and reproduction of their culture and history.

As outlined in both the and by the European Commission announcing the adoption of Recommendation 2011/711/EU, EU member states have been challenged to grow the collection to 30 million items by 2015. In order to achieve this goal, the Commission suggests that states seek innovative solutions and adopt programs that engage the private sector. As outlined in the , the Commission is hoping “to get more in-copyright and out-of-commerce material online and to adapt national legislation and strategies to ensure the long term preservation of digital materials”.

Over the last few years, the Commission has been pushing Europeana as a one-stop shop for the digital preservation of Europe’s shared history and culture. This recommendation is simply another representation of the Commission’s commitment to coming up with a pan-European solution which allows the citizens of Europe greater access to culturally significant items from the comfort of their own homes. As stated by the Commission on previous occasions and affirmed in the press release accompanying Recommendation 2011/711/EU, the hope is that Europeana’s content will spur development of educational content, documentaries, and tourism related applications. The Commission states that the digitisation project “will give enormous economic opportunities to Europe’s creative industries, which currently account for 3.3% of the EU’s GDP and 3% of jobs in the EU.”

Europeana and the digitisation activities associated with it are one of the “digital service infrastructures” earmarked for funding under the and the project plays an integral role in the European Commission’s . Europeana has also just launched two innovative projects. The first, entitled “,” is a project that allows citizens to submit their own stories and memorabilia from World War I. So far, Europeana has collected and digitised more than 25,000 items as part of this project.

The second project Europeana recently undertook was the “”. As part of this project, 85 developers were given access to Europeana’s content in order to produce innovative prototype applications for mobile or gaming devices. With the adoption of this recommendation, Europe has once again affirmed its position that the digitisation of culturally significant objects and in-copyright and out-of-commerce represents an important undertaking that requires support from all of Europe’s Member States.

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The dust over Google’s has not even begun to settle, when already the next copyright infringement dispute between the two parties seems to be looming. For more information regarding the now-infamous Google Books Lawsuit, see the article by fellow IPilogue Editor, Matt Lonsdale,

The latest complaint, was filed on September 12, 2011, by a combination of organizations and individuals, all of whom have the common interest of protecting authors’ copyright over their works. The document alleges, in no uncertain terms, that Google has been involved (with the help of HathiTrust and by partnering with certain educational institutions) in the “systematic, concerted, widespread and unauthorized reproduction and distribution of millions of copyrighted books and other works,” and that this infringement quite clearly goes against sections 106, 107 and 108 of the . The plaintiffs are the , , and (UNEQ), while the individual authors include Pat Cummings, André Roy and James Shapiro, among others. The defendants, on the other hand, are all organizations— (a digital library and preservation database), Google Inc. and the libraries of the Universities of Michigan, California, Wisconsin, Indiana, and Cornell University.

The major issues outlined in the complaint are centred around Google and the universities’ disregard for authorship rights of writers whose names are attached with their works, as well as for the purported “orphans” of global literature, i.e. “copyrighted works whose authors may be impossible to identify and locate,” as per provided by the . Google’s main partner in this (alleged) digital thievery, HathiTrust, provides the infrastructure for the storage and preservation of works once they have been copied into bytes. The works themselves are provided to Google through a “cooperative” agreement with the university libraries, and the actual physical process of digitization is conducted by Google, with its own software and tools. Because of the nature of these agreements, the plaintiffs state that every work is ultimately made into 12 separate copies, with the various defendants keeping these for their own use— whether for commercial or non-profit. The plaintiffs also mention that in no case do either Google or the other defendants seek permission for the reproduction of authors’ works, even when the materials in question are written by well-known and much-awarded authors.

As a defence, the defendants allege that the reproductions are for the public good, namely for the “tremendous societal value provided by [the] nation’s libraries and archives in preserving and securing works of art, literature and science.” The defendants are pointing to the “library exemption” provision under of the US Copyright Act that allows for the selected reproduction of materials by libraries, in order to ensure greater public access. However, the plaintiffs then point to , which specifically prevents almost all of the activity that the defendants have been carrying out, namely, the justified reproduction and preservation of documents, without any direct or indirect commercial advantage. While HathiTrust says that it is a medium for storage and access alone, the degrees of access are controlled by the HathiTrust Rights Database, which may very well charge a fee to the public or even release “full” versions of the works for free.

Additionally, the creation of the HathiTrust Orphan Works Project, a plan devised to weed out  “authorless” works, has the plaintiffs up in arms. The Project has been formulated to find out if works without identified authors are available for commercial use, by determining the nature of their copyright. Interestingly, the “multistep due diligence process” is devised and carried out by HathiWorks itself, which tries to contact an author (if such a person is found) and, failing that, lists a work on its website to be claimed within 90 days of posting. After this time, the work is deemed freely accessible to the public in full and may be eligible for future commercial copyright by Google.

On reading the complaint, the reasons for the plaintiffs’ wrath becomes quite clear. As the document mentions, Google’s actions seem intent on dismissing the authors’ rights by involving educational institutions in what is fast-becoming one the biggest copyright infringement actions in history. Additionally, Google’s hasty scheme to digitize as much as possible, as fast as possible, leads one to think that the universities themselves have not placed much thought into the Project. The University of Michigan’s due to errors in the “pilot process” shows that the educational institution may have been carried away by the venture.

The Authors Guild website has enlisted the help of millions of readers worldwide to .” Considering this endeavour is only a couple of weeks old, the remarkable success rate shows the public’s desire to keep information open, but not at the cost of authors. shows Google’s unwillingness to compromise, but it seems that the universities involved are attempting to work out a legal solution to the issue.

Barry Sookman and Dan Glover also talk about , where fair dealing and lending without reproduction exist, but within reasonable limits. This is a special responsibility for universities, which provide access to information to millions of readers worldwide. Educational institutions are already both the sources and the propagators of original thought and creativity, as well as media for dissemination of knowledge to the public.  Academics themselves might be subject to unauthorized reproduction if the HathiTrust projects are allowed to go on. The mass release of scholarship to the general public through private parties could affect the quality of education offered in institutions of higher learning, with the universities ultimately having no one but themselves to blame for going googly-eyed over Google’s ceaseless .

The post Authors’ Groups File Complaint Against Google For Mass Copyright Infringement appeared first on IPOsgoode.

The Google Book Search (GBS) initiative once promised to test the bounds of fair use, as the company started scanning millions of in-copyright books from the collections of major research libraries. The initial goal of this scanning was to make indexes of the books’ contents and to provide short snippets of book contents in response to pertinent search queries. The Authors Guild and five trade publishers sued Google in the fall of 2005 charging that this scanning activity was copyright infringement. Google defended by claiming fair use. Rather than litigating this important issue, however, the parties devised a radical plan to restructure the market for digital books, which was announced on October 28, 2008, by means of a class action settlement of the lawsuits. Approval of this settlement would give Google – and Google alone – a license to commercialize all out-of-print books and to make up to 20 per cent of their contents available in response to search queries (unless rights holders expressly forbade this).

discusses the glowingly optimistic predictions about the future of books in cyberspace promulgated by proponents of the GBS settlement and contrasts them with six categories of serious reservations that have emerged about the settlement. These more pessimistic views of GBS are reflected in the hundreds objections and numerous amicus curiae briefs filed with the court responsible for determining whether to approve the settlement. GBS poses risks for publishers, academic authors and libraries, professional writers, and readers as well as for competition and innovation in several markets and for the cultural ecology of knowledge. Serious concerns have also been expressed about the GBS settlement as an abuse of the class action process because it usurps legislative prerogatives. The article considers what might happen to the future of books in cyberspace if the GBS deal is not approved and recommends that regardless of whether the GBS settlement is approved, a consortium of research libraries ought to develop a digital database of books from their collections that would enhance access to books without posing the many risks to the public interest that the GBS deal has created.

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Last Friday, Google filed a revised for the class action law suit regarding its Google Book Search service. The settlement addresses many complaints directed at the in October 2008. The two most important of these are the handling of unclaimed and orphan works, and potential antitrust issues. This new agreement solves some of the most glaring problems with the original but leaves some cause for concern.

The Class

The original settlement would have applied to all owners of U.S. copyright interest in a book. This included non-U.S. citizens who had a book published in the United States, or who lived in countries that are members of the Berne Convention or countries that have other copyright relations with the United States. The revised settlement only includes the United States, Canada, Australia and the United Kingdom.

Paying the Rights Holders

The original settlement proposed a Book Rights Registry to track ownership of copyrighted materials, distribute payments to authors, and deal collectively with Google. 63% of revenue generated by Google (through uses such as advertising, database subscriptions, and e-book sales) would be given to the registry. Rights holders would have five years to collect their money before it could be used by the registry. The obvious problem is that this provided little incentive to actually search out the rights holders. The revised settlement addresses this with two changes. First, unclaimed funds can no longer be absorbed by the registry. Instead, after five years the money may be used to pay for efforts to locate rights holders and, after ten years, it can be donated to a court-approved charity or turned over to state governments where required. Second, it requires an independent court-appointed Unclaimed Works Fiduciary to represent the rights holders of orphan works and who must approve all uses of unclaimed money.

Competing with Google

Under both versions of the settlement, the Book Rights Registry is able to deal with other organizations on behalf of rights holders. However, the original settlement contained a clause (3.8) stating that the Registry "will extend economic and other terms to Google that, when taken as a whole, do not disfavor or disadvantage Google as compared to any other substantially similar authorizations granted to third parties by the Registry". In other words, no other organization could get better terms than Google. The new agreement removes this clause.

One possible source of future controversy is the powers of the fiduciary with respect to third-parties. The settlement grants the fiduciary the power to license uses of unclaimed works but also states that this power can be exercised "to the extent permitted by law". The Registry has the same powers and phrasing with respect to claimed works under the added restriction that they cannot go against the directions of a rights holder. But copyright law doesn't permit a person to license work they do not own. What does this mean for third parties? One is that the Registry would not be able to license to organizations other than Google without authorization from rights holders. The other organizations are not party to the contract and thus can't rely on its provisions with respect to them. On the other hand, the contract says the parties will create a registry that has the power to license works. The registry should therefore have the power to license works. The phrase may also anticipate future legislation governing the licensing of unclaimed and orphan works---a possibility that is addressed elsewhere in the settlement. Critics have argued that the solution proposed by this settlement will set back such legislation, but if the agreement does indeed give Google an advantage over its competition, it might lend the issue a sense of urgency that it had previously lacked. If the registry does have the power to deal with third parties, it will probably attract regulation.

Final Thoughts

Normally one doesn't think of a class action lawsuit as being a good thing for a company. Yet, it's only because of this suit that Google can reach an agreement with all rights holders at one time. Many have argued that it unfairly benefits Google, but Google took a big risk and is paying a large price for these benefits. Hopefully, they will extend to others but in any event, I believe we're better off with one giant digital library than none.

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Good news for IP lovers who want to get their fix of policy debate at the gym or in the car: The podcast is for you. Based out of UCLA, the monthly downloadable program is hosted by law professor Doug Lichtman and has been broadcasting for a little over a year. Every month the program assembles a panel of guests for an hour long talk-radio style conversation. This month’s episode features a lively talk between Brad Smith (General Counsel, Microsoft), Scott Martin (Executive VP, Paramount Pictures) and Dan Cooper (VP of Business and Legal Affairs, Myspace) and asks one of the most important questions in IP today: Can content survive online?

The conversation touches on many of the hot-button issues in tech and entertainment law, including Google books, Hulu, digital rights management, and targeted advertising. Despite their big-business connections the guests talk frankly about the challenges created by the internet and are not shy of discussing their industries’ failings.

Regarding Google books, the panel is fairly unanimous: On the one hand, what Google is trying to do in its effort to digitize a vast library of books and host them online is undoubtedly in the public interest and there is a huge demand for it. However, the guests agree that Google was downright arrogant in the way they went about it. A class action lawsuit, they argue, was not the right vehicle for negotiating what is really a forward-reaching publishing agreement. Furthermore, the settlement puts the onus on authors to opt out of the system, something which might be unfair in many cases.

The conversation then turns to business models for content. Professor Lichtman starts out by criticizing the model. With Hulu, TV networks have captured a huge share of the streaming television market which was previously dominated by pirate websites by offering essentially the same service at a higher quality with a few very short ads. In some circles Hulu has been heralded as a success, yet at what cost? The site gets millions of visitors but provides almost no revenue to the television networks. Lichtman asks whether this is really a viable business model moving forward that will support the creation of high quality new shows. The panel mostly agrees that Hulu is not sustainable, with Scott Martin noting that the real casualties of the youtube revolution will be independent films that rely on DVD sales and can’t afford to enforce their intellectual property rights.

The program ends off discussing targeted advertising and DRM. Lichtman asks the panel what the problem is with getting users to accept these technologies, suggesting that it is not so much a legal problem as it is cultural. Tellingly, the panel responds that DRM has not been abandoned but will be employed in different ways. Says Scott Martin: “It’s all about transparency and disclosure. The way you screw yourself [as a content provider] is when the consumer buys a copy they think they’re going to have forever and two weeks later it’s locked up.” Brad Smith agrees, saying it’s too soon to give up on DRM just because it has failed so far.

The program brings up a number of interesting points and is worth a download if you’re into podcasts. It plays like a CBC radio or NPR talk show and the speakers are all very engaging. Ultimately they raise more questions than answers, but it’s likely that they’re the right questions.

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But Google is a perpetual opportunist. And its trump card was an offer to settle. According to Professor Pamela Samuelson in , the settlement offered by Google - and most likely to be accepted by the plaintiffs - will "transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books." If accepted, the settlement could give Google a license to commercialize all books owned by the class.

The settlement agreement designates the Authors Guild as the representative of the author subclass and the AAP as the representative of the publisher subclass. Amongst their increased power and responsibility over digital books, one of the most important tasks for the Authors Guild and the AAP is to create a new collection system, the Book Rights Registry, which ideally would find class members, sign them up, and pay them from a revenue stream that Google intends to generate from its commercialization of these books.

In the same article, Pamela Samuelson lists four reasons to challenge the Google Books settlement:

1. The proposed settlement agreement implicitly estimates that only about 750,000 copyright owners will sign up with the Registry, at least in the near term.
2. Many books are "orphans," that is, books whose rights holders cannot be located by a reasonably diligent search.
3. Many easily findable rights holders, particularly academic authors, would much rather make their works available on an open access basis than to sign up with the Registry.
4. Signing up with the Registry will not be a simple matter, since the Registry won't just take your word for it that you are the rights holder. You will have to prove your ownership claim.

I would like to add a fifth reason, and one that - in my very humble opinion - may be the most overwhelming and overarching reason of all: the settlement will give Google the ultimate monopoly over digital books and will wield almost all power over book distribution and sales. Again, according to Samuelson's article, because of international treaties, virtually every author and publisher of in-copyright books in the world is in the settlement class and eligible to receive revenues from the Google Book Search commercialization if they sign up with Google or the Registry. To me, books, in one form or another, represent the culmination of much of the knowledge that exists in our world. And to have one powerhouse - even a company as 'friendly' as Google - have so much control over them scares me. Through the power of search engine algorithms that the general public knows nothing about, Google has the power to hold whatever book it wants on a pedestal and drop whatever book it wants into its dark database abyss.

But can a monopoly like this be avoided? Probably not. First of all, I cannot imagine any other company other than Google that will have enough innovative prowess, enterprising abilities and guts to pursue such a book search project. Secondly, I cannot imagine a similar settlement - partnership between parties - to be repeated. With this settlement, we have Google working hand-in-hand with the Authors Guild and the AAP. Would the latter two parties do this again with another tech giant? I'd say that it is unlikely.

In our recent history, every technology leap forward has come with a step backwards in terms of risks, whether they are health concerns, safety concerns, or in this case, monopoly concerns. Will we just have to live with it? Perhaps. Or if authors would like, objections must be filed with the court by September 4, 2009.

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