The deal Google cut with publishers to settle their copyright infringement suit would give a green light to the search giant's book-scanning services and turn it into a retailer of out-of-print books. But resistance to the deal has been growing, as a variety of parties are realizing that the settlement gives both Google and the Book Rights Registry created by the deal enormous power over the dissemination of the scanned material. The latest groups to weigh in represent research librarians, who are worried about the deal's privacy implications and the lack of guarantees of current and future access. The solution, in their view, is to structure the settlement in a way that guarantees the court the right to intervene in the future.

The groups involved—the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries—have sent the court that is conducting hearings on the settlement have submitted comments on the deal, made as parties to the settlement (many librarians publish as well), in which they voiced their worries. The judge had previously rejected the Internet Archive's attempt to become a party to the case, but had indicated he would accept various forms of input on the settlement.

Concerns over missing details

The librarians make clear up front that they don't oppose the settlement, stating that it "has the potential to provide unprecedented public access to a digital library containing millions of books," which is consistent with libraries' core mission: "providing patrons with access to information in all forms, including books." But Corey Williams, who's with the ALA's Office of Government Relations, told Ars that the group is as much concerned with what's not in the settlement as what is. Two areas that the agreement is largely silent on are traditional concerns of libraries, namely public access to information and user privacy.

"This was a private settlement agreement between three entities, and the negotiations were not open to others participating, so we had no voice in what the settlement would look like," Williams told Ars. "We've heard a handful of libraries that are participating in the book scanning were engaged to varying degrees, but those conversations were gagged." As such, the groups and their members felt that the settlement agreement was overly focused on the business agreements among its parties, while leaving a number of public interest issues unspecified. The comments are an attempt to point those issues out in the hope that the judge overseeing the case will incorporate some specifics.

Librarians have a long history of standing up for the anonymity of their institutions' patrons, having recently stood up to the FBI regarding records queries made under the Patriot Act. The settlement, as structured, would make their facilities gateways to the Google book collection, including works that individual library users may wish to purchase. But, in contrast to access of library materials, Google would have complete control over the personal information obtained during interactions with book material. "The settlement itself does not specify how Google and the Registry will protect user privacy," Williams noted. "It's silent on what user information will be retained and how it's used."

The other issue—access to the content—can be viewed as two different worries: what material will be accessible, and how much will it cost. The comments note that, under the terms of the settlement, Google will be able to exclude up to 15 percent of what it scans, entirely at the company's discretion. As the company has cooperated with government censors in the past, the libraries find this a bit worrisome. Google also gets to control the access to the book data by academic researchers that are interested in mining its text.

But regardless of what material's there, the comments note that there are serious concerns regarding whether the price of the service may limit access. The settlement promises a free access terminal, but that may be grossly insufficient for large university or public libraries, many of which already claim that they're suffering from an insufficiency of terminal access. There are also worries about the vagueness of access pricing as spelled out in the agreement, which calls for it to be comparable to "then current prices for comparable products and services." The text mentions the concern that the "comparable products and services" will wind up being academic research journals, which have seen skyrocketing prices in recent years. As Williams put it, "absent of any other product out there that looks like this one, the only model we can look at is what's happened in the journal subscription area, and that's a worry."

Ensuring competition

But there's also a clear recognition that Google is way ahead of anyone else that's actively scanning books, and is likely to stay that way for some time. "Competition and influence—the potential lack there of—are serious concerns," Williams said. "If there aren't competing products to choose from, then there are definitely worries down the line." Instead of simply allowing the Book Rights Registry to license material to other parties, the libraries would like to see efforts made to foster competition, which may help limit some of the other problems outlined in the comments.

Because so little has been specified by the agreement, and so many of these issues will be worked out once the service goes operational, the librarians call on the judge to engage in long-term monitoring of the implementation of the settlement. Jonathan Band, who helped the organizations draft the comments, told Ars that "class action settlements often do require long-term involvement by courts—judges often appoint special masters to oversee these kinds of settlements."

We also asked Band about the tendency to focus on Google's lack of competition, which sounded a bit like an antitrust issue. "This is a somewhat unusual situation in that the underlying case involves claims of copyright infringement, not antitrust violations, and it is the structure of the settlement that raises the competition issues," Band replied, "But precisely because the settlement raises the issues, the judge has the authority to address them without requiring a separate finding of an antitrust violation."

In the end, the concerns voiced here echo those voiced by other groups. The settlement is structured so that it addresses the specific needs and concerns of the parties directly involved, but the implications of the settlement are pretty widespread. As the document notes, they include "fundamental library values such as equity of access to information, patron privacy, and intellectual freedom." As Williams told us, "We're very supportive of digital content, and we see the settlement as being pivotal in setting precedents for accessing digital content, but we're concerned with the cost, and don't want to see rights eroded.