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Sony praises Google's Book Search in court hearing

But 22 companies object to Google plans

Google's book search service was was praised yesterday by five different companies, including Sony and the National Federation of the Blind, for making hard-to-find books accessible to a much larger group of readers, and not be lost to the ages.

The comments were made during a court hearing in which Google once again made the case for digitising millions of orphaned books.

A total of 27 different parties requested to speak before the court. Five were in favour, while the 22 remaining companies opposed the settlement. These included Amazon, Microsoft, the Open Book Alliance and the Electronic Privacy Information Center.

The objectors voiced strong concerns that the settlement case preempts US copyright law altogether. Others voiced privacy and antitrust concerns.

The court will decide whether or not to approve a proposed settlement to a class action suit waged by a number of author groups towards Google, for its actions of scanning out-of-print books.

US Judge Denny Chin said that he would not reach a decision at the end of that day's fairness hearing, given the amount of feedback the court received.

The settlement, reached in October 2008, came out of a 2005 lawsuit brought about by the Authors Guild, the Association of American Publishers and other groups of concerned writers and content producers.

The groups expressed outrage that Google was scanning millions of books, an act which they felt violated US fair use rights.

The company was planning to offer snippets of the books as part of their search results.

The resulting settlement allows Google to scan books that are still in copyright yet are out of print, provided that it sets up a registry of authors and book titles, and makes an effort to notify authors of these books that their works are being reused.

In exchange, the company can then offer snippets or even fully downloadable versions of the books for a fee, from which they would pay the authors a percentage of the profits. Authors would be free to opt out of the program.

Reacting to Department of Justice antitrust concerns, the parties revised the settlement and resubmitted it to the court in November, narrowing the scope of the agreement to US books.

Despite the revisions, the Justice Department voiced concerns.

Deputy Assistant Attorney General William Cavanaugh, who argued the settlement's opt-out approach preempts copyright law insofar that copyright law grants the copyright holders full control over how their works can be published.

The proposed settlement "eviscerates the right to prior approval", Cavanaugh said.

This view was echoed by others. The settlement, in effect, allows Google to continue to infringe copyright law in the future by not obtaining prior approval, said David Nimmer, a representative for Amazon.

Google attorney Daralyn Durie argued that the opt-in approach would not work for the company, and so it is a non-negotiable part of the settlement.

Her reasoning was that Google cannot tell which of the out of print books will prove to be popular once made digitally available again, so finding each author and persuading him or her to be opt-in would be too cost-prohibitive, she said.

She added that Microsoft tried this opt-in approach and has since given up on its efforts.

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