When the US Copyright Office first heard about the proposed Google Books settlement, it found the idea a "positive development." Then, after reading the fine print, it changed its collective mind, deciding instead that Google was really out to rewrite US copyright law through the courts.

Marybeth Peters, the Register of Copyrights, today explained to Congress (PDF) her office's objections to what Google hoped to do:

But as we met with the parties, conversed with lawyers, scholars and other experts, and began to absorb the many terms and conditions of the settlement—a process that took several months due to the length and complexity of the documents—we grew increasingly concerned. We realized that the settlement was not really a settlement at all, in as much as settlements resolve acts that have happened in the past and were at issue in the underlying infringement suits. Instead, the so-called settlement would create mechanisms by which Google could continue to scan with impunity, well into the future, and to our great surprise, create yet additional commercial products without the prior consent of rights holders... Allowing Google to continue to scan millions of books into the future, on a rolling schedule with no deadline, is tantamount to creating a private compulsory license through the judiciary.

This objection from the top US copyright authority certainly doesn't help Google's chances of legalizing its massive book scanning project. Peters doesn't like the fact that the proposed settlement covers far more than Google's past behavior—it covers all books published before January 5, 2009, whether they have already been scanned or not. In addition to covering past behavior, then, the settlement would allow the company to continue scanning for decades, if that's how long it takes to digitize every volume published before 2009.

To Peters, this essentially creates a compulsory copyright license for all books published before this year; though there is an opt-out mechanism, the presumption is that Google can scan any book and that it is protected from liability for doing so.

Such a compulsory license for books isn't necessarily a bad thing; Peters told Congress that it was "an interesting proposition." But she also said that it was Congress' call to make and always had been. Creating such a default right to all existing books went beyond what was proper for the judiciary and was an end run around Congressional authority.

This was a charge that Google's David Drummond was at pains to rebut. He spoke repeatedly in his testimony about preserving "Congress's role in setting copyright policy." "The suggestion that the settlement usurps the role of Congress to set copyright policy because the suit took the form of a class action is flatly wrong," he added, pointing out that Congress had creating the class action system and arguing that this was a proper application of it.

Drummond's remarks were also peppered with the sort of idealistic talking points about "access to knowledge" and freeing "trapped" information and concluding that "something far greater for human knowledge is at stake." Hearing his remarks with no previous knowledge of the company, one would be hard-pressed to realize that it was one of the largest Internet behemoths in the world.

"We are a new entrant, starting with zero market share" in the bookselling world said Drummond, before chalking up corporate opposition to a fear of competition rather than anything more principled.

Still, Google announced a concession today to ease concerns of its rivals over the settlement: allowing other companies to sell access to Google's scanned works. "Google will host the digital books online," said the company, "and retailers such as Amazon, Barnes & Noble or your local bookstore will be able to sell access to users on any Internet-connected device they choose. Retailers can also pursue their own digitization efforts of out-of-print books in parallel."