Is Google playing by the book?

The search giant is on its way to becoming the world's digital library, but a private monopoly raises questions.

Many people on summer vacation may be deep into a juicy paperback right now. But while they're cooking through "Julie & Julia," or rocketing through the twists and turns of "The Time Traveler's Wife," the future of the book industry – who will control which books can be viewed online – is being weighed by a federal judge.

For several years Google, the Internet search and advertising giant, has been scanning millions of books for digital use. The aim of this huge effort is to make available online as much of the world's written record as possible. But shortly after Google began, it was sued by authors and publishers for alleged copyright infringement.

That class action suit led to a preliminary settlement last October. Among other provisions, it would allow authors to share in the profits if Google charges for access to these online books, which the company has not ruled out. With the advent of the Kindle and other electronic readers, so-called e-books are a fast-growing market.

This October, a judge is expected to make a ruling on the settlement. Already, the US Justice Department's antitrust division and the European Union have expressed interest in the settlement and raised concerns about issues of copyright and monopoly.

Google currently allows its online viewers to see those digitized books that it claims are out of copyright, or more than 75 years old. But it also has books under copyright, which it allows to be viewed only in short passages, a practice the company argues does not infringe on copyright.

So-called "orphan" books – those still in copyright but whose publisher or author (or those holding authorial rights) has not come forward – have become a central issue. Google would like to scan these books online, but this would in essence create a monopoly if Google sells access to them at whatever price it chooses.

Under the settlement, Google would have a permanent license to scan and sell ads next to orphan books. It argues there is little interest in these orphan books and that others can scan and put them online, too. Though that's theoretically true, it's unlikely any organization without Google's size and resources would make the same bold move – risking thousands of lawsuits to test whether these books can be legally sold by anyone other than their authors or publishers. That, critics say, creates, in practice, a monopoly.

The arcane details of the case risk sending anyone except legal eagles into a deep summer siesta. But the big issues here are well worth public attention. Should a private corporation (Google) become the librarian for the world's collected knowledge? Even if it offers to play nice, share revenues, and make books easily accessible now, what about in the future?

Google has scanned about 10 million books so far, with a goal of 40 million or more. For the price of constructing just 60 miles of new highways, the Library of Congress could digitize 10 million books and put them online to be read free of charge in perpetuity by anyone, points out Brewster Kahle, the founder and director of the Internet Archive. That nonprofit group has digitized more than a million books itself but lacks the financial resources of Google.

And what about privacy? Google will be capturing information on which books users search for and search within, as well as those they might purchase. What will it do with that information? Information on what people choose to read is sensitive and subject to abuse. The company has promised strong privacy protections under the settlement but has been unwilling so far to spell them out in detail. And no matter how good protections may sound at the outset, what assurance is there that Google's policy won't change in the future? These issues plague the Internet in general but have especially important implications here.

The idea of digitizing the world's written record and making it freely available to everyone is exhilarating. The ability of a student in Alabama or Albania to have access to the contents of the world's libraries online at their fingertips, for example, is a powerful concept and just one of the ways a free and open Web can lift humanity.

But history shows that when a company – even one with talent and good intentions – acts like a monopoly, it is subject to abuses. Despite the potentially monumental effects of this settlement, it has had little public scrutiny. Yet it needs a rigorous examination.

If it stands, the agreement must include long-term safeguards that allow public access to the full collection at reasonable cost, maintain the rights of copyright holders, and ensure the necessary privacy of those who use the service.

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