NEW YORK (AP) ― A judge on Tuesday rejected a deal between Internet search leader Google and the book industry that would have put millions of volumes online, citing anti-trust concerns and the need for involvement from Congress while acknowledging the potential benefit of putting literature in front of the masses.
U.S. Circuit Judge Denny Chin in Manhattan said the creation of a universal library would “simply go too far,” and he was troubled by the differences between Google’s views and those of everyone affected by the settlement.
Still, he left the door open for an eventual deal, noting that many objectors would drop their complaints if Mountain View, California-based Google Inc. set it up so book owners would choose to join the library rather than being required to quit it.
The $125 million settlement had drawn hundreds of objections from Google rivals, consumer watchdogs, academic experts, literary agents and even foreign governments. Google already has scanned more than 15 million books for the project.
Google’s managing counsel, Hilary Ware, called the decision disappointing and said the company was considering its options.
“Like many others, we believe this agreement has the potential to open up access to millions of books that are currently hard to find in the U.S. today,” Ware said in a statement.
She said that, regardless of the outcome, Google would “continue to work to make more of the world’s books discoverable online” through Google Books, a searchable index of literary works, and Google eBooks, which allows readers to access books wirelessly on digital devices.
The judge said the settlement that the company reached with U.S. authors and publishers would “grant Google significant rights to exploit entire books, without permission of the copyright owners.”
He was particularly critical of the access Google would have to so-called orphan works ― out-of-print books whose writers could not be located ― saying the deal gave the company “a de facto monopoly over unclaimed works.”
That was one of the fears raised in 2009 by the Department of Justice when it concluded that the agreement probably violated antitrust law and could decrease competition among U.S. publishers and drive up prices for consumers.
The deal, the judge said, gives Google “a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission.”
He noted that the case was not about full access to copyrighted works or the sale of them because Google did not scan the books to make them available for purchase, but he said the deal still would let Google sell full access to copyrighted works that it otherwise would have no right to exploit. The litigation focused on the use of an indexing and search tool.
The judge said Congress should ultimately decide who should be entrusted with guardianship over orphan books and under what terms, rather than the issue being resolved by private, self-interested parties.
He said Congress also could address the concerns of the international community of authors and publishers. He called it significant that foreign authors, publishers and even nations were saying the agreement violates international law. France and Germany had objected to the deal, along with authors and publishers in Austria, Belgium, India, Israel, Italy, Japan, New Zealand, Spain, Sweden, Switzerland and Britain.
Department of Justice spokeswoman Gina Talamona said in a statement that the government was pleased with the ruling. The settlement, she said, “exceeded the scope of the underlying lawsuit on which it was based and created concerns regarding antitrust, class certification and copyright issues.”