Sigalon's Google Soup

Today, Feb. 18 may be Judgment Day for Google's Book Search settlement, which has been more than five years in the making.

Google, authors and publishers are expected to hear Denny Chin, a judge for the U.S. District Court of the Southern District of New York, hold a fairness hearing for the deal, which calls for Google to scan and sell access to millions of out-of-print works.

The proceedings will begin at 10 a.m. local time at the courthouse in Manhattan, according to the Wall Street Journal, which lists the itinerary here.

Some 28 parties will have five minutes to speak, 23 of which oppose the deal, which has been amended to meet class-action, anticompetitive and other issues.

Opponents of the deal slated to speak include Microsoft, Amazon, whose Kindle e-reading business would be challenged by Google Books, the Open Book Alliance, led by Microsoft antitrust slayer Gary Reback, the State of Connecticut, and the Commonwealth of Pennsylvania.

Only Sony, the National Federation of the Blind, Howard University School of Law, the Center for Democracy and Technology and the University of Michigan Library will speak in support of the agreement.

As if the deck isn't stacked enough against the pact, the Department of Justice, which believes the deal will enable Google to cultivate a monopoly in the nascent electronic book market, will speak.

Finally, the settlement parties -- Google, the Authors Guild and Association of American Publishers -- will make their case for why they should be permitted to proceed.

After all that, Chin may make a decision for or against the deal, or just order another revision.

Obviously, striking down the deal would be a huge blow for Google, which has pumped a lot of time and resources, including computer infrastructure, for this deal.

But if Chin orders the parties to undertake another revision to assuage the DOJ's concerns -- namely that it affords Google "anticompetitive advantages --Google may find the revisions the government agency is asking for untenable and abandon the deal outright.

To get you up to speed, CNET has a fine timeline of Google Book Search here.

The hubbub over Google Book Search was quiet toward the end of 2009, with Google, authors and publishers anxiously waiting for their next day in the New York District Court presiding over the case.

That would be Feb. 18, as I noted Nov. 20. November 20! It's clearly been a long time between stories about GBS, which I asserted was one of the top stories out of the Googleplex in 2009.

GBS received a rousing debate Dec. 30, courtesy of PBS NewsHour, which pitted Google Book Search engineer Dan Clancy versus Gary Reback, the lawyer of Microsoft antitrust fame and a vocal opponent of GBS via the Open Book Alliance.

You can read the transcript of the debate and see this video, which sums up the case well in an 8:35 clip:

Peter Brantley, Reback's co-steward at the Open Book Alliance notes that while that Clancy was candid about Google hoping to make money from selling access to the digital books it scans, the engineer skirted the monopoly issue.

That's because Google doesn't see itself in monopolistic, Microsoftian terms the way Brantley, Reback, Amazon.com, and, in the supreme irony, Microsoft, do.

Clancy acquitted himself well, and PBSNewshour's Spencer Michels rounded up Stanford University librarian for support, but I still feel Google got smoked here by Reback, who is merciless and unyielding without being laughably fire-and-brimstone the way so many Google critics come off.

Reback told PBS Newshours' Michels he doesn't trust Google not to impose hefty licensing fees for GBS and noted:

What Google is proposing here is not like any library you have ever been to. It's not a public library. It's a private library. And it's being run for profit, big profits. Google is going to charge university scholars, ordinary people, even schoolchildren, to get access to books that Google copied without the permission of the publisher or the author.

People no longer see any big difference between Google and Google's competitors. They're in it for money. And we need to depend on the competitive system to protect us.

He also notes that he would be railing against Amazon.com and Microsoft if they received similar deals, but noted that if all of the Internet companies got a similar deal we would all be better off for it.

Reback makes a compelling case, but early reports are District Court Judge Denny Chin likes the revised deal. Of course, the Department of Justice will weigh in heavily this month with its view and that is not supposed to be so kind toward Google.

Keep an eye on this story, because it's going to heat up over the next six weeks.

Google Book Search is more than a massive undertaking to organize the world's books online and make them available to users.

It's become a epic struggle aficionados of Star Wars can appreciate. From a legal front, this quest stretches back five years, which for many of us who have watched not only Google but the rest of the Internet Wild West burgeon seems like it's long ago, in a galaxy far, far away.

One week after Google, authors and publishers submitted their revised proposal, New York District Court Judge Denny Chin granted preliminary approval to the class-action settlement.

Google was pleased:

The preliminary approval order sends a positive initial message; this agreement promises to benefit readers and researchers, and enhance the ability of authors and publishers to distribute their content in digital form. We remain hopeful that the agreement will receive final approval from the court and will realize the goal of significantly expanding online access to works through Google Book Search, an ambitious effort to make millions of books searchable via the Web.

The Open Book Alliance, led by Internet Archive's Peter Brantley and the lethal Microsoft antitrust legal eagle Gary Reback (with Amazon, Microsoft and Yahoo as supporting cast), dismissed Chin's approval as par for the course:

This is not a surprising development and is not any indication that the court will or will not accept the terms of Settlement 2.0. The same procedural preliminary approval was given to Settlement 1.0, and now sets up a court process that will allow those opposed to the revised settlement to let their objections known to the court.

Settlement 1.0 was filed in October 2008 to organize the world's out-of-print books and sell access to them online. Settlement 2.0 has been reworked to limit Google Book Search to include works registered with the U.S. Copyright Office or published in the United Kingdom, Australia or Canada.

The amended settlement also requires the Book Rights Registry--the group appointed to distribute digital book sales to Google, authors and publishers--to have a court-approved trustee to represent rights holders for orphaned works and license their works to third parties.

Chin also set a date for the final hearing on the parties' settlement proposal: Feb. 18, 2010. Opponents and proponents of the deal will be able to file notices with the court between Dec. 14 of this year and Jan. 28.

The U.S. Department of Justice, which urged Chin to reject the settlement because it would violate class action, copyright and antitrust law, has until February 4 to discuss the deal with the court.

My view is the DOJ will disapprove of this revision, too, which would likely alter Chin's view.

While Google, authors and publishers made many changes and concessions, early reports are that they don't seem to have adequately addressed the DOJ's concerns that the deal will give Google too much control over orphaned works -- even though Google has offered to let rivals take them from Google's repository and resell them.

If the DOJ requests more changes, they would likely be of the sort that would be unsatisfactory to Google, which has its own stubborn ideas of how to do things. Larry and Sergey are right; anyone who disagrees is wrong.

Frankly, the OBA won't be happy until Google goes away. The group doesn't want Google presiding over the world's books by itself.

They'd rather wait for some non-partisan group to preside over such an undertaking. The Internet Archive has been toiling away at this, but hasn't gotten as far as Google, which has indexed something like 12 million books to date.

Read what third-party pundits are saying about the revised Google Book Search deal here.

So much scorn for Google, and it can only end badly if Google continues along this course.

With each court proceeding, the rhetoric will be ratcheted up; the idea that Google is a benevolent search engine trying to organize the world's information online will continue to morph into the notion that Google is a greedy Microsoftian-like company that wants to control the world's data.

At one point does the company just say enough is enough, we've got to worry about getting Chrome Operating System to the market next year?