Government Calls a Halt to Google Books Settlement
Does this mean the settlement is "dead," as the Open Book Alliance proclaims. Yes, in its exact current form, but not in principle. Indeed, while the government sees serious issues to be resolved, it obviously believes that such a resolution can be found, and that a settlement that allows orphan and other out-of-print works to be made digitally available is a positive, not a negative, for the public. In its brief to the court, the government states its support of a settlement that allows Google to scan and offer in-copyright books to the public, albeit through a revised agreement: "The United States strongly supports a vibrant marketplace for the electronic distribution of copyrighted works, including in-print, out-of-print, and so-called "orphan" works. The Proposed Settlement has the potential to breathe life into millions of works that are now effectively off limits to the public. By allowing users to search the text of millions of books at no cost, the Proposed Settlement would open the door to new research opportunities." The government clearly wants this process to go forward. We suspect that this differs from some of the objectors who may really want to see this agreement killed, not modified.
The one factor that may continue to make this settlement tricky is the practical one. The government does not want to see Google obtain a monopoly in the business of selling digitized copies of out-of-print but in-copyright books. That is reasonable enough, but who is going to compete with them? Digitizing tens of millions of books is very expensive. This is hardly a certain money-maker. For Google, which seeks to maintain its dominance of the search business and the advertising revenue that comes with it, this project may be financially justifiable for reasons other than the 37% it earns on sales of access to these texts. Google may be able to make additional income through advertising, a set-off of costs not readily available to competitors. Only one other commercial enterprise, Microsoft, has attempted to follow Google into this business, and they abandoned it after 2 years and 700,000 digitized books. If Microsoft can't compete, who can?
Amazon might seem a logical competitor, scanning books to be sold for its Kindle reader. However, while Amazon is likely to want to offer popular books, we doubt whether they will want to invest in scanning millions of books no longer in sufficient demand to justify reprinting, especially those obscure "orphans" likely to be of interest only to some niche researcher, if anyone. Perhaps the most logical competitor is a not-for-profit digital resource such as the Internet Archive. These groups have been loathe to scan anything without preapproval, and their mission has been to provide text to the public free of charge. It would require a change in how they operate, along with a huge infusion of money and volunteer labor, for an organization such as this to provide serious competition to Google.